Suresh v. Can. (M.C.I.), (2000) 252 N.R. 1 (FCA)

• Judge: Décary, Linden and Robertson, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: January 18, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 252 N.R. 1 (FCA)

Suresh v. Can. (M.C.I.) (2000), 252 N.R. 1 (FCA)

MLB headnote and full text

Temp. Cite: [2000] N.R. TBEd. FE.020

Manickavasagam Suresh (appellant) v. The Minister of Citizenship and Immigration and The Attorney General of Canada (respondents)

(A-415-99)

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

Federal Court of Appeal

Décary, Linden and Robertson, JJ.A.

January 18, 2000.

Summary:

Suresh, a Tamil from Sri Lanka, was granted Convention refugee status. He subsequently became the subject of a secur­ity certificate issued pursuant to s. 40.1 of the Immigration Act on the basis that he was inadmissible to Canada pursuant to ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f) (iii)(B) because of his alleged en­gagement in terror­ist acts, either personally or through mem­bership in an organization which en­gaged in terrorist acts. The reason­ableness of the security certificate was upheld by Teitel­baum, J., who found that the World Tamil Movement, of which Suresh was a fundrais­ing coordinator, supported the Liber­ation Tigers of Tamil Eelam (LTTE), an organiza­tion alleged to engage in terror­ism (see 140 F.T.R. 88). The Minister of Citizen­ship and Immi­gration issued an opin­ion pursuant to s. 53(1)(b) of the Act that Suresh was a danger to the security of Canada. That finding enabled the Minister to return ("re­foule") Suresh to the country from which he sought refuge despite the fact that refoule­ment might expose Suresh to a risk of tor­ture. Suresh applied for judi­cial review of the Minister's decision raising a number of constitutional and ad­ministrative law issues.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 173 F.T.R. 1, dismissed the application. Suresh appealed and moved for an order staying his removal from Canada pending the disposi­tion of his appeal.

The Federal Court of Appeal, per Robert­son, J.A., granted the motion for a stay (see 249 N.R. 28).

The Federal Court of Appeal dismissed the appeal. Suresh had asked the court to delay entering formal judgment in order to give him time to file a motion to stay execution of the deportation order pending an applica­tion for leave to appeal to the Supreme Court of Canada. The court ordered that Suresh could move for formal judgment within seven days.

Administrative Law - Topic 3202

Judicial review - General - Scope of review - The Minister of Citizenship and Immi­gration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a dan­ger to the security of Canada - That find­ing enabled the Minister to return ("re­foule") Suresh to the country from which he sought refuge despite the fact that re­foulement might expose Suresh to a risk of torture - Suresh applied for judicial review, raising a number of constitutional and administrative law issues - The appli­cation was dismissed - Suresh appealed - The Federal Court of Appeal considered the issue of whether there was a need for both a constitutional and an administrative law standard of review and held that it favoured only one standard - It was mis­leading to apply one standard because each of the determinations made by the Minister in arriving at a final decision could be subject to a different standard of review - Further, there was no basis for setting aside the Minister's decision under any of the available spectrum of standards - See paragraphs 122 to 165.

Aliens - Topic 3.2

Legislation - Incorporation of international obligations - The Minister of Citizenship and Immi­gration issued an opinion pursu­ant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a danger to the security of Canada - That finding enabled the Minister to return ("refoule") Suresh to the country from which he sought refuge despite the fact that refoulement might expose Suresh to a risk of torture - Suresh argued that under the International Covenant on Civil and Political Rights and the Convention Against Torture the right to be secure against torture was a non-derogable right and that the prohibition against returning a person to a country where there was a risk of torture had become "jus cogens", i.e., an international peremptory norm binding all states such that derogation was impermis­sible - The Federal Court of Appeal rejected the argument - The Convention Against Torture and the International Covenant on Civil and Political Rights contained no express principle of non-derogation in respect of the prohibition against refoulement to a country which exposed a person to a risk of torture - Further, the alleged peremptory norm conflicted with Canada's domestic law as evidenced by s. 53(1)(b) of the Immigra­tion Act and the domestic legislation pre­vailed - See paragraphs 22 to 33.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Suresh, a Convention refugee, became the subject of a security certificate issued pursuant to s. 40.1 of the Immigration Act on the basis that he was inadmissible to Canada pursuant to ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f) (iii)(B) because of his alleged engage­ment in terror­ist acts, either per­sonally or through member­ship in an or­ganization which engaged in terrorist acts - Suresh was a fundraising coordinator for the World Tamil Movement, which sup­ported the Liberation Tigers of Tamil Eelam, an organization alleged to engage in terrorism - The Minister determined pursuant to s. 53(1)(b) of the Act that Suresh was a danger to the secur­ity of Canada - Suresh argued that ss. 19(1)(e) and 19(1)(f) of the Immigration Act vio­lated his rights to freedom of expression and association under ss. 2(b) and 2(d) of the Charter - The Federal Court of Appeal rejected the argument - Fundraising in pursuit of ter­rorist violence fell outside the sphere of protected expression under s. 2(b) and those who expressed their beliefs through participation with organizations engaged in terrorist activities could find no solace in s. 2(d) - See paragraphs 34 to 46.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister deter­mined pursuant to s. 53(1)(b) of the Immi­gration Act that Suresh, a Convention refugee, was a danger to the secur­ity of Canada - Suresh argued that he was not accorded procedural due process under s. 7 of the Charter because, inter alia, the Mini­ster's decision under s. 53(1)(b) involved a subjective decision making process, while s. 7 of the Charter required an objec­tive one - The Federal Court of Appeal rejected the argument - See para­graph 50.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister deter­mined pursuant to s. 53(1)(b) of the Immi­gration Act that Suresh, a Convention refugee, was a danger to the secur­ity of Canada - Suresh argued that he was not accorded procedural due process under s. 7 of the Charter - He submitted, inter alia, that the Minister was not acting impartially when rendering her decision under s. 53(1)(b) because she was acting as both prosecutor and judge - The argument stemmed from the fact that it was the Minister and the Solicitor General who had signed a security certificate respecting Suresh and it was the Minister who made the final determination that Suresh consti­tuted a danger to Canada - The Federal Court of Appeal rejected the argument - See paragraphs 51 to 52.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister of Citi­zenship and Immi­gration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a danger to the security of Canada - That finding enabled the Minister to return ("refoule") Suresh to the country from which he sought refuge despite the fact that refoulement might expose Suresh to a risk of torture - Suresh argued that he was not accorded procedural due process under s. 7 of the Charter because he was denied an oral hearing before the Minister - The Federal Court of Appeal rejected the argu­ment - An oral hearing was not required to carry out the required risk assessment - See paragraphs 53 to 54.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister of Citi­zenship and Immi­gration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a danger to the security of Canada - Sur­esh argued that he was not accorded pro­cedural due process under s. 7 of the Charter because he did not receive written reasons from the Minister - He submitted that a memorandum of an analyst with the De­partment of Citizenship and Immigra­tion upon which the Minister based her decision was not sufficient to satisfy that require­ment - The Federal Court of Appeal rejected the argument - The mem­orandum submitted to the Minister could be deemed written reasons - See para­graph 55.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - Suresh, a Convention refugee, became the subject of a security certificate issued pursuant to s. 40.1 of the Immigration Act on the basis that he was inadmissible to Canada pursuant to ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f) (iii)(B) because of his alleged engage­ment in terror­ist acts, either per­sonally or through member­ship in an or­ganization which engaged in terrorist acts -The Min­ister determined pursuant to s. 53(1)(b) of the Act that Suresh was a danger to the security of Canada - Suresh argued that the phrase "danger to the sec­urity of Canada" in s. 53(1)(b) and the word "ter­rorism" in three of the inadmis­sible classes in s. 19 were void for vague­ness - The Federal Court of Appeal re­jected the argu­ment - See paragraphs 56 to 69.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister of Citi­zenship and Immi­gration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a danger to the security of Canada - Sur­esh argued that there was an absence of a statutory duty on the Minister to consider whether refoulement would expose a per­son to a risk of torture and, if so, to deter­mine whether the state's interest out­weighed the individual's right not to be exposed to a risk of torture - He submitted that that omission was contrary to the prin­ciples of fundamental justice - The Federal Court of Appeal rejected the argu­ment - The principles of fundamental justice did not require a statutory source for the min­isterial obligation to conduct a risk assess­ment and balancing of interests - Rather, that obligation was found in s. 7 of the Charter itself - See paragraphs 70 to 76.

Aliens - Topic 1645.1

Exclusion and expulsion - Immi­gration - Deport­ation - Grounds for - Danger to the security of Canada - The Minister of Citi­zenship and Immi­gration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refu­gee, was a danger to the security of Canada - Sur­esh argued that as s. 53(1)(b) author­ized offi­cials to return a Conven­tion refugee to a country in which he or she faced a risk of torture it contravened the principles of fun­damental justice under s. 7 of the Char­ter and was not saved by s. 1 of the Char­ter - A threshold issue arose with respect to whether a bal­ancing of the state's inter­est against the individual's right not to be exposed to torture should occur under the s. 7 analysis as opposed to the s. 1 analysis - The Federal Court of Appeal held that it was preferable to effect a balancing of interests under s. 1 of the Charter as op­posed to s. 7 - See para­graphs 77 to 105.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - The Minister of Citi­zenship and Immi­gration issued an opinion pursuant to s. 53(1)(b) of the Immigration Act that Suresh, a Convention refugee, was a danger to the security of Canada - Sur­esh argued that as s. 53(1)(b) authorized offi­cials to return a Convention refugee to a country in which he or she faced a risk of torture it contravened the principles of fundamental justice under s. 7 of the Char­ter - The Federal Court of Appeal held that s. 53(1)(b) of the Immigration Act violated s. 7 of the Charter, but was saved under s. 1 of the Charter - See paragraphs 105 to 118.

Aliens - Topic 1645.1

Exclusion and expulsion - Immigration - Deportation - Grounds for - Danger to the security of Canada - [See Administrative Law - Topic 3202 ].

Aliens - Topic 1747

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Members of a subversive or terrorist organization - [See first and sixth Aliens - Topic 1645.1 ].

Aliens - Topic 1789

Exclusion and expulsion - Deportation of persons in Canada - Refugees - [See Aliens - Topic 3.2 and seventh and ninth Aliens - Topic 1645.1 ].

Civil Rights - Topic 1803

Freedom of speech or expression - Free­dom of expression - Scope of - [See first Aliens - Topic 1645.1 ].

Civil Rights - Topic 2103

Freedom of association - Scope of right - [See first Aliens - Topic 1645.1 ].

Civil Rights - Topic 3107

Trials - Due process, fundamental justice and fair hearings - Void for vagueness doctrine - [See sixth Aliens - Topic 1645.1 ].

Civil Rights - Topic 3177

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Requirement of a hearing - [See fourth Aliens - Topic 1645.1 ].

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 1645.1 ].

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure con­trary to fundamental justice - [See ninth Aliens - Topic 1645.1 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See second, third, fourth, fifth and seventh Aliens - Topic 1645.1 ].

Civil Rights - Topic 3194

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to rea­sons for decision - [See fifth Aliens - Topic 6145.1 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See eighth and ninth Aliens - Topic 1645.1 ].

Civil Rights - Topic 8466

Canadian Charter of Rights and Freedoms - Interpretation - Balancing approach - [See eighth Aliens - Topic 1645.1 ].

International Law - Topic 5

General - Incorporation into domestic law -[See Aliens - Topic 3.2 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22 (S.C.C.), refd to. [para. 4].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, refd to. [para. 14].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 22].

Pinochet Ugarte, Re, [1999] H.L.J. No. 12 (H.L.), refd to. [para. 31].

Irwin Toy Ltd. v. Québec (Procureur gén­éral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 35].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 35].

Sivakumar v. Minister of Employment and Immigration, [1994] 1 F.C. 433; 163 N.R. 197 (C.A.), refd to. [para. 40].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 45].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134; 2 M.P.L.R.(2d) 217, refd to. [para. 52].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241; [1989] 3 W.W.R. 456; 65 Alta. L.R.(2d) 97; 35 Admin. L.R. 1; 57 D.L.R.(4th) 458, refd to. [para. 52].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, consd. [para. 53].

R. v. Nova Scotia Pharmaceutical Society (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 56].

R. v. Morales (M.), [1992] 3 S.C.R. 711; 144 N.R. 176; 51 Q.A.C. 161; 77 C.C.C.(3d) 91; 17 C.R.(4th) 74; 12 C.R.R.(2d) 31, refd to. [para. 57].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 40 D.L.R.(4th) 435; [1987] 5 W.W.R. 1; 58 C.R.(3d) 193; 15 B.C.L.R.(2d) 273, refd to. [para. 71].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241; 97 D.L.R.(4th) 577, refd to. [para. 72].

Schmidt v. Canada et al., [1987] 1 S.C.R. 500; 76 N.R. 12; 20 O.A.C. 161; 58 C.R.(3d) 1; 28 C.R.R. 280; 39 D.L.R.(4th) 18; 33 C.C.C.(3d) 193, refd to. [para. 72].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; 48 C.R.(3d) 289; 23 C.C.C.(3d) 289; [1986] 1 W.W.R. 481, refd to. [para. 79].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, appld. [para. 84].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81; 63 C.C.C.(3d) 481; 5 C.R.(4th) 253, refd to. [para. 86].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 87].

Reference Re Ng Extradition, [1991] 2 S.C.R. 858; 129 N.R. 177; 119 A.R. 300, refd to. [para. 96].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1, refd to. [para. 117].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 117].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 120].

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 577; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 125].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 125].

Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147; 6 Admin. L.R.(2d) 54 (T.D.), affd. (1993), 154 N.R. 319; 13 Admin. L.R.(2d) 304 (F.C.A.), refd to. [para. 129].

Canada (Attorney General) v. Purcell, [1996] 1 F.C. 644; 192 N.R. 148 (F.C.A.), refd to. [para. 130].

Calgary Power Ltd. and Halmrast v. Copi­thorne, [1959] S.C.R. 24, refd to. [para. 130].

Swain v. Dennison, [1967] S.C.R. 7, refd to. [para. 130].

Gana v. Canada (Minister of Manpower and Immigration), [1970] S.C.R. 699, refd to. [para. 130].

Nenn v. R., [1981] 1 S.C.R. 631; 36 N.R. 487, refd to. [para. 130].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81; 20 M.P.L.R.(2d) 1, refd to. [para. 130].

Everett v. Canada (Minister of Fisheries and Oceans) (1994), 169 N.R. 100; 25 Admin. L.R.(2d) 112 (F.C.A.), refd to. [para. 130].

Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, refd to. [para. 134].

Maple Lodge Farms Ltd. v. Canada and Minister of Economic Development, [1982] 2 S.C.R. 2; 44 N.R. 354, refd to. [para. 134].

Glover v. Plasterer et al., [1999] 2 W.W.R. 219; 104 B.C.A.C. 68; 170 W.A.C. 68 (C.A.), refd to. [para. 134].

Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (C.A.), refd to. [para. 135].

Weatherall v. Canada (Attorney General), [1988] 1 F.C. 369; 11 F.T.R. 279 (T.D.), refd to. [para. 168].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(b), sect. 2(d), sect. 6, sect. 7, sect. 12 [para. 4].

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(e), sect. 19(1)(f), sect. 19(1)(g), sect. 40.1(1), sect. 40.1(7), sect. 52(1), sect. 52(3), sect. 53(3) [para. 4].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates (March 10, 1977), p. 3863 [para. 108].

Canada, Hansard, House of Commons Debates (August 12, 1987), generally [para. 110].

Hansard - see Canada, Hansard, House of Commons Debates.

Hogg, Peter, Constitutional Law of Canada (Looseleaf Ed.), vol. 2, p. 44-17 [para. 79].

Singleton, D., The Principles of Funda­mental Justice, Societal Interests and Section 1 of the Charter (1995), Can. Bar Rev. 446, generally [para. 83]; p. 471 [para. 90].

Stratas, David, The Charter of Rights in Litigation, vol. 1, p. 17-12 [paras. 83, 88].

United Nations' Committee Against Tor­ture, General Comment on the Imple­mentation of Article 3 in the Context of Article 22 of the Convention Against Torture, U.N. Doc. CAT/CIXX/Misc. 1 (1997), paras. 6, 7 [para. 151].

United States Department of State Report, Sri Lanka Country Report on Human Rights Practices for 1996, generally [para. 158].

Counsel:

Barbara Jackman, Lorne Waldman and Ronald Poulton, for the appellant;

Cheryl Mitchell and Neeta Logsetty, for the respondents.

Solicitors of Record:

Jackman, Waldman and Associates, Toronto, Ontario, for the appellant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondents.

This appeal was heard on October 4 and 5, 1999, at Toronto, Ontario, before Décary, Linden and Robertson, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Robertson, J.A., on January 18, 2000.