Charkaoui, Re, (2005) 284 F.T.R. 248 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: October 04, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 284 F.T.R. 248 (FC);2005 FC 1670

Charkaoui, Re (2005), 284 F.T.R. 248 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] F.T.R. TBEd. DE.022

Dans L'Affaire Concernant un certificat et son dépôt en vertu du paragraphe 77(1) et des articles 78 à 80 de la Loi sur l'Immigration et la protection des réfugiés ("LIPR");

Dans L'Affaire Concernant la décision du Ministre de la Citoyenneté et de l'Immigration de protéger ou non une personne visée par un certificat de sécurité, en vertu des articles, paragraphes et alinéas 95(1)c), 112(3)d), 113b), c) et d) i) et ii) et 115(2), 77(2), 101(1)f) et 104 de la LIPR et des articles 167 à 172 du Règlement sur l'Immigration et la protection des réfugiés, Dors/2002-227 ("RIPR") et de la remise en question constitutionnelle de ces articles et paragraphes;

Et Dans L'Affaire Concernant M. Adil Charkaoui

(DES-3-03; 2005 FC 1670; 2005 CF 1670)

Indexed As: Charkaoui, Re

Federal Court

Noël, J.

December 9, 2005.

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). Numerous IRPA proceedings ensued, including a protection application. Charkaoui applied for a permanent suspension of proceedings against him, raising a number of constitutional issues with respect to the protection claims for persons named in security certificates. Charkaoui also claimed that if he was removed to Morocco he would be exposed to the risk of torture contrary to his constitutional rights and rights under international conventions. He also alleged bias and improper delegation of power by the Ministers responsible for issuing the security certificate.

The Federal Court dismissed Charkaoui's application. The court concluded that the provisions of the IRPA governing claims for protection did not violate ss. 7, 12 and 15 of the Charter, the Canadian Bill of Rights, the Convention against Torture, the Convention relating to the Status of Refugees, the International Covenant or the Universal Declaration. Charkaoui failed to persuade the Court that the protection claims system established by the IRPA was unconstitutional. Further, Charkaoui also failed to show that the IRPA, the application of the IRPA, or the decisions made by the Ministers, employees, etc., amounted to torture, inhuman treatment or degrading treatment. The ordinary procedure had followed its course and the length of that procedure at this point was due to its inherent complexity and the legitimate decisions made by Charkaoui and his representatives and by the Ministers and their representatives. The system established by Parliament for protecting persons named in a security certificate was accordingly declared to be valid. The court stressed that any deportation order made against a person named in a security certificate continued to be fully subject to review for lawfulness, having regard to the Charter and to Suresh v. MCI. However, in this case, no such decision was before the court.

Administrative Law - Topic 24

General - Abuse of process - What constitutes - [See fourth Aliens - Topic 1314.6 ].

Administrative Law - Topic 2081

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Crown ministers - [See third Aliens - Topic 1314.6 ].

Aliens - Topic 2

Definitions and general principles - Legislation - Interpretation - Section 3(3) of the Immigration and Refugee Protection Act (IRPA) provided that "this Act is to be construed and applied in a manner that ... (f) complied with international human rights instruments to which Canada is signatory" - The Federal Court interpreted this provision - See paragraphs 35 to 44 - The court stated that "the interpretation of paragraph 3(3)(f) of the IRPA leads to the conclusion that it is a general, interpretive provision that does not operate to incorporate international law into domestic law. The effect of that provision is not to give international law norms status equal or superior to domestic law, or to invalidate domestic law" - See paragraph 44.

Aliens - Topic 3.2

Definitions and general principles - International Conventions and obligations (incl. incorporation of ) - [See Aliens - Topic 2 ].

Aliens - Topic 1314.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - Where person named in security certificate - 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) - Numerous IRPA proceedings ensued - Charkaoui applied to permanently stay the proceedings, arguing that the provisions of the IRPA relating to protection applications by persons named in security certificates (ss. 95(1)(c), 98, 112(3)(d), 113(b), 113(c), 113(d)(i), 113(d)(ii) and 115(2), read together with ss. 77(2), 101(1)(f), and 104 and ss. 167 to 172 of the Immigration and Refugee Protection Regulations) were contrary to the principles protected by ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms, by the Canadian Bill of Rights, ss. 1(b) and 2(b), and by certain international law instruments - The Federal Court rejected Charkaoui's argument - The court held that protection applications involved a weighing exercise similar to the procedure in the former Immigration Act, the validity of which had already been confirmed by the Supreme Court of Canada in Suresh - It was up to the Ministers to assess both the risk associated with returning a person named in a security certificate to his or her country of origin and the danger that the person might constitute to national security - It was premature for the court to rule on the constitutionality of deporting Charkaoui to torture where he was awaiting a Pre-Removal Risk Assessment and no effort had been made to deport him to a country where there was a risk of torture - The court also rejected Charkaoui's argument based on the Convention against Torture, the Convention relating to the Status of Refugees and the Canadian Bill of Rights - See paragraphs 22 to 49.

Aliens - Topic 1314.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - Where person named in security certificate - 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) - Numerous IRPA proceedings ensued, including a protection application - Charkaoui applied to permanently stay the proceedings, arguing that the Ministers that signed the certificate and the Government of Canada, by their acts or omissions, treated him in a manner prohibited by ss. 7, 12 and 15 of the Canadian Charter of Rights and Freedoms and by the Convention against Torture by continuing to expose him to being returned to a country where he was at risk of being tortured - He argued that the threat of removal to a country where he would face torture amounted to a form of torture - The Federal Court rejected Charkaoui's argument - He presented no case law to show that this type of proceeding violated s. 7 - Although the proceeding in question amounted to "treatment" within the meaning of s. 12 of the Charter, it was not treatment that could be characterized as cruel and unusual - The fact that particular rules applied to non-citizens like Charkaoui was not contrary to ss. 7 and 15 of the Charter - No authority was cited for Charkaoui's Convention argument and, in any event, art. 1(1) of the Convention against Torture seemed to indicate that an administrative or judicial process could not be regarded as torture - Thus, Charkaoui's situation did not, in itself, amount to cruel or unusual treatment within the meaning of the Charter or Convention - The court held further, that the Ministers' impugned conduct (whether because of the time taken to disclose the Pre-Removal Risk Assessment, the wording of a diplomatic note or the time taken to process the protection claim) did not amount to cruel or unusual treatment within the meaning of those instruments - See paragraphs 50 to 67.

Aliens - Topic 1314.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - Where person named in security certificate - 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) - Numerous IRPA proceedings ensued, including a protection application - Charkaoui applied to permanently stay the proceedings, arguing that in processing the protection claim, the Government of Canada, the Ministers who signed the security certificate and their employees engaged in actions that created an appearance of bias that prevented them in the future from making objective and unbiased decisions under the IRPA - The Federal Court rejected Charkaoui's argument - The court stated that the actions of the authorities did not amount to mistreatment and they did not appear to be actions such as would indicate an appearance of bias on the part of the decision-makers since the actions were carried out in compliance with the IRPA - The court opined that a reasonable and right minded person with thorough knowledge of the case would arrive at the same determination - See paragraphs 68 to 71.

Aliens - Topic 1314.6

Admission - Refugee protection, Convention refugees and persons in need of protection - Persons in need of protection - Where person named in security certificate - 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) - Numerous IRPA proceedings ensued, including a protection application - Charkaoui argued that the procedure followed and the decisions made amounted to an abuse of process such as would justify suspending the proceedings - The Federal Court rejected Charkaoui's argument - The court stated that it found nothing in the proceedings thus far involving Charkaoui, including the protection claim, that amounted to an abuse of process - There was nothing oppressive or vexatious and the principles of fundamental justice were followed from the outset - The process outlined in the IRPA was followed - The court stated that even if it had found an abuse, it would have considered alternative remedies for rectifying the situation before contemplating a permanent suspension of proceedings - See paragraphs 72 to 77.

Aliens - Topic 1558

Exclusion and expulsion - Power to detain and deport - Minister's certificate (Immigration and Refugee Protection Act) - General - 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) - Numerous IRPA proceedings ensued, including a protection application - Charkaoui applied to permanently stay the proceedings - He argued that the two Ministers who signed the certificate (i.e., the Solicitor General and the Minister of Citizenship and Immigration) and the Government of Canada exceed their jurisdiction or otherwise act illegally and unconstitutionally when they signed and filed an arrest warrant and security certificate against him based solely on a Canadian Security Intelligence Service (CSIS) report and without themselves having regard to the evidence concerning Charkaoui - The Federal Court rejected Charkaoui's argument - There was no evidence to show that the Ministers had before them only the CSIS report and did not have the evidence on which the report was based - There was no evidence to show that the evidence before the Ministers was incomplete - See paragraphs 17 to 20.

Aliens - Topic 4088

Practice - Hearings - Constitution of board (incl. bias) - [See third Aliens - Topic 1314.6 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See first and second Aliens - Topic 1314.6 ].

Civil Rights - Topic 3831

Cruel and unusual treatment or punishment - What constitutes - Immigration, deportation, sponsorship, etc. - [See first and second Aliens - Topic 1314.6 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - [See first and second Aliens - Topic 1314.6 ].

International Law - Topic 5

General - Incorporation into domestic law - [See Aliens - Topic 2 ].

Cases Noticed:

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 12].

Sogi v. Canada (Minister of Citizenship and Immigration) (2004), 254 F.T.R. 129; 2004 FC 853, refd to. [para. 12].

Agiza v. Sweden, Communication No. 233/2003, U.N. Doc. CAT/C/34/D/233/2003, refd to. [para. 33].

De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] 2 F.C.R. 162; 257 F.T.R. 290 (F.C.), refd to. [para. 36].

Montreal (City) v. 2952-1366 Québec Inc. (2005), 340 N.R. 305; 2005 SCC 62, refd to. [para. 37].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 339 N.R. 1; 2005 SCC 51, refd to. [para. 38].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 48].

Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 330 N.R. 73; 2005 FCA 54, refd to. [para. 56].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 57].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 69].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 335 N.R. 220; 2005 SCC 39, refd to. [para. 74].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 75].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 75].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 77].

Harkat, Re, [2005] 2 F.C.R. 416; 259 F.T.R. 98; 2004 FC 1717, refd to. [para. 80].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1985, App. III, sect. 1(b), sect. 2(b) [para. 48].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 12, sect. 15 [para. 6].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3(3)(f) [para. 35]; sect. 77(2) [para. 88, Appendix]; sect. 79(2), sect. 80(1), sect. 81(a), sect. 81(b), sect. 81(c) [para. 10]; sect. 95(1)(c) [para. 88, Appendix]; sect. 98 [para. 10]; sect. 101(1)(f), sect. 104 [para. 10]; sect. 112(3)(d), sect. 113(b), sect. 113(c), sect. 113(d)(i), sect. 113(d)(ii) [para. 88, Appendix]; sect. 114 [para. 10]; sect. 115(2) [para. 88, Appendix].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 167, sect. 168, sect. 169, sect. 170, sect. 171, sect. 172 [para. 88, Appendix].

United Nations, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987, No. 36, art. 1(1) [para. 59]; art. 3 [para. 29].

United Nations, Convention Relating to the Status of Refugees, Can. T.S. 1969, No. 6, art. 9, art. 32, art. 33(2) [para. 46].

United Nations, International Covenant on Civil and Political Rights, Can. T.S. 1976, No. 47, art.12(3), art. 13, art. 14 [para . 46].

Universal Declaration of Human Rights (1948), G.A. Res. 217 A (III), Doc. A/810, sect. 29(2) [para. 47].

Authors and Works Noticed:

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Evidence: Meeting No. 11 (April 26, 2001), generally [Appendix 2].

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Evidence: Meeting No. 12 (April 30, 2001), generally [Appendix 2].

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Evidence: Meeting No. 16 (May 2, 2001), generally [Appendix 2].

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Evidence: Meeting No. 20 (May 4, 2001), generally [Appendix 2].

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Evidence: Meeting No. 22 (May 8, 2001), generally [Appendix 2].

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Evidence: Meeting No. 24 (May 15, 2001), generally [Appendix 2].

Canada, Standing Committee on Citizenship and Immigration, 1st sess., 37th Parliament, Report (May 28, 2001), generally [para. 41].

Canada, Standing Committee on Citizenship and Immigration, 2nd sess., 37th Parliament, Evidence: Meeting No. 62 (May 27, 2003), generally [para. 7].

Counsel:

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

Dominique Larochelle and Johanne Doyon, for Adil Charkaoui.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Montréal, Quebec, for the Solicitor General of Canada and the Minister of Citizenship and Immigration;

Des Longchamps, Bourassa, Trudeau et Lafrance, Montréal, Quebec and Doyon Morin, Montréal, Quebec, for Adil Charkaoui.

This application was heard at Montréal, Quebec, on October 4, 2005, before Nöel, J., of the Federal Court, who delivered the following reasons for order on December 9, 2005.