Federal Court of Appeal Decisions

Date: 19990723

Docket: A-415-99

PRESENT:          THE HONOURABLE MR. JUSTICE ROBERTSON

BETWEEN:

     MANICKAVASAGAM SURESH

     Appellant

     - and -

     THE MINISTER OF CITIZENSHIP & IMMIGRATION

     THE ATTORNEY GENERAL OF CANADA

     Respondents

Heard by Teleconference at Ottawa and Toronto, Ontario, on Monday, July 19, 1999

ORDER delivered at Ottawa, Ontario, on Friday, July 23, 1999

REASONS FOR ORDER BY:      ROBERTSON J.A.

Date: 19990723

Docket: A-415-99

PRESENT:      THE HONOURABLE MR. JUSTICE ROBERTSON

BETWEEN:

     MANICKAVASAGAM SURESH

     Appellant

     - and -

     THE MINISTER OF CITIZENSHIP & IMMIGRATION

     THE ATTORNEY GENERAL OF CANADA

     Respondents

     REASONS FOR ORDER

ROBERTSON J.A.

[1]      This is an expedited motion for an order staying the removal of the appellant ("Mr. Suresh") from Canada pending the disposition of his appeal from the decision of Justice McKeown, dated June 28, 1999, in which Mr. Suresh"s application for judicial review was dismissed. The judicial review application was initiated after the Minister of Immigration and Citizenship issued an opinion letter under paragraph 53(1)(b ) of the Immigration Act in which she described Mr. Suresh as a danger to the security of Canada.

[2]      There has been an increase in the number of stay applications pending the disposition of an appeal to this Court from a dismissal of a judicial review application involving certified questions of general importance under subsection 83(1) of the Act. These applications raise an interesting question as to the type of irreparable harm which satisfies the second part of the tripartite test set out in the jurisprudence. In the reasons that follow, I agree with the Ontario Supreme Court that the failure to grant the relief sought in this and similar cases would effectively render the hearing of the appeal on the merits "moot" or "nugatory". I begin my analysis with a recitation of the facts precipitating this stay application.

FACTS AND LITIGATION

[3]      Mr. Suresh, a Tamil from Sri Lanka, arrived in Canada on October 5, 1990 and was found to be a Convention refugee on April 1, 1991. On September 11, 1995, Mr. Suresh became the subject of a security certificate issued pursuant to section 40.1 of the Act on the grounds that he was inadmissible to Canada by virtue of sections 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Act. The certificate was based on security intelligence reports and was signed by the Solicitor General and the Minister of Citizenship and Immigration on September 11, 1995. Sections 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Act state:

s. 19(1)(e)(iv)(C): person who there are reasonable grounds to believe are members of an organization that there are reasonable grounds to believe will engage in terrorism;

s. 19(1)(f)(ii): persons who there are reasonable grounds to believe have engaged in terrorism;

s. 19(1)(f)(iii)(B): persons who there are reasonable grounds to believe are or were members of an organization that there are reasonable grounds to believe is or was engaged in terrorism [emphasis added].

[4]      Mr. Suresh was detained on October 18, 1995, and given notice of the section 40.1 proceedings against him, namely, that a certificate had been issued under section 40.1 and that a deportation order may be made against him.

[5]      On August 29, 1997, after more than fifty days of hearings, Justice Teitelbaum held that the certificate issued by the Solicitor General and the Minister of Citizenship and Immigration pursuant to section 40.1 of the Act was valid. Justice Teitelbaum found that there was sufficient evidence for him to conclude that the certificate issued by the Crown was reasonable. He noted that he did not have to consider whether Mr. Suresh was or is a member of the Liberation Tigers of Tamil Eelam ("LTTE"), but only to determine whether there was evidence upon which the Crown could reasonably conclude that Mr. Suresh was or is such a member. Justice Teitelbaum concluded that there were reasonable grounds to believe that Mr. Suresh was and is a member of the LTTE, based on his earlier activities and the fact that he travelled internationally to head the World Tamil Movement which, Justice Teitelbaum concluded can reasonably be considered part of the LTTE organization or at least strongly supportive of it. Justice Teitelbaum also referred to Mr. Suresh"s continual contacts with the leadership of the LTTE, the fact that he devoted a great deal of his time to the LTTE, and the fact that Mr. Suresh collected funds for that organization. Justice Teitelbaum found that Mr. Suresh "lacks total credibility" and that, in his written representations to obtain refugee status "little, if anything, written by [Mr.] Suresh was true". With respect to the meaning of "terrorism" as it is used in the Act , Justice Teitelbaum concluded that it should receive a "wide and unrestricted interpretation for the purposes of a section 40.1 application". Referring to an Appendix containing 140 incidents involving the LTTE, and rejecting Mr. Suresh"s witnesses" characterization of such incidents as justified in the struggle for political independence, Justice Teitelbaum found that there were reasonable grounds to conclude that the LTTE committed terrorist acts, regardless of how the word terrorism is defined. Thus, Justice Teitelbaum held that the certificate issued under section 40.1 of the Act was valid. There is no appeal from or judicial review of Justice Teitelbaum"s decision, according to subsection 40.1(7) of the Act , which states:

40.1(7) [w]here a certificate has been reviewed by the Federal Court pursuant to subsection (4) and has not been quashed pursuant to paragraph (4)(d),     

(a) the certificate is conclusive proof that the person named in the certificate is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2)(d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii); ...

[6]      After Justice Teitelbaum"s decision, but before he issued reasons, an adjudicator ordered Mr. Suresh deported from Canada on the ground that he is a person described in section 19(1)(e )(iv)(C) and 19(1)(f)(iii)(B) of the Act. The adjudicator did not mention section 19(1)(f)(ii), apparently because the adjudicator did not agree with Justice Teitelbaum"s decision for which reasons had not yet been issued. As I understand the facts, the Crown has appealed that portion of the adjudicator"s decision to the Immigration Appeal Division of the Immigration and Refugee Board. That appeal has yet to be heard. On September 17, 1997, Mr. Suresh was given notice that the Minister was considering issuing a paragraph 53(1)(b ) opinion that Mr. Suresh was a danger to the security of Canada. As I understand the statutory scheme, one of the effects of the paragraph 53(1)(b) opinion is to eliminate any right to appeal to the Immigration and Refugee Board on humanitarian and compassionate grounds. Counsel for Mr. Suresh made submissions to the Minister on October 1, 1997, but requested that the Minister refrain from making a decision under paragraph 53(1)(b) until Justice Teitelbaum"s reasons upholding the security certificate were issued. Justice Teitelbaum issued his reasons on November 14, 1997. On January 6, 1998, the Minister of Citizenship and Immigration rendered a decision pursuant to paragraph 53(1)(b ) that Mr. Suresh represents a danger to the security of Canada. Mr. Suresh filed an application for leave and for judicial review of the Minister"s decision. He also sought an interlocutory injunction to prevent his removal from Canada pending the disposition of his leave application. On January 16, 1998, Justice Tremblay-Lamer dismissed the injunction, finding that Mr. Suresh would not suffer irreparable harm and that the balance of convenience favoured the Minister. Thus, on January 19, 1998, Mr. Suresh commenced a Notice of Application in the Ontario Court of Justice (General Division), as it then was, seeking an injunction to prevent his deportation. Justice Lane dismissed the jurisdictional challenge to the Ontario court"s authority and granted the interlocutory injunction, but he stayed the underlying Notice of Application. Justice Teitelbaum authorized the release of Mr. Suresh from detention on March 23, 1998, on terms and conditions stipulated in subsection 40.1(9) of the Act . The Ontario Divisional Court dismissed the Crown"s appeals from the two orders of Justice Lane on January 8, 1999.

[7]      On June 28, 1999, Justice McKeown dismissed Mr. Suresh"s application for judicial review of the decision of the Minister of Citizenship and Immigration to declare Mr. Suresh a danger to the security of Canada pursuant to paragraph 53(1)(b ) of the Act. In doing so, he addressed a number of constitutional and administrative law issues including the Federal Court"s jurisdiction to determine the constitutionality of paragraphs 19(1)(e ), 19(1)(f) and 53(1)(b) of the Act, whether sections 2, 7 and 12 of the Charter were violated, whether the Minister"s decision was procedurally unfair, and whether Mr. Suresh had been given sufficient notice of all of the evidence considered by the Minister. Parenthetically, I note that a number of similar issues were considered in Moumdjian v. Security Intelligence Review Committee et al. (A-1065-88, F.C.A., July 19, 1999), which was only recently filed by this Court.

[8]      With respect to the jurisdictional issue, Justice McKeown affirmed the Federal Court"s jurisdiction to declare legislation of no force and effect on an application for judicial review. With respect to the Minister"s discretionary decision under section 53 of the Act , Justice McKeown was of the view that the Minister"s decision was reasonable, since the Minister balanced the risk of returning a Convention refugee to Sri Lanka against the danger that Mr. Suresh poses to Canadian security. Justice McKeown also held that the requirements of procedural fairness were satisfied since adequate disclosure was made to Mr. Suresh of the material before the Minister, and the Minister"s decision was reasonably open to her, based on the evidence. With respect to Mr. Suresh"s Charter arguments, Justice McKeown found that the balancing undertaken by the Minister in making her decision under paragraph 53(1)(b) did not violate the principles of fundamental justice, nor did it violate Article 3 of the Convention Against Torture. Justice McKeown also noted that Mr. Suresh failed to satisfy the high evidentiary threshold required by Article 3 of the Convention Against Torture (which is not binding under Canadian law) and the Convention Relating to the Status of Refugees (which has been implemented into the Immigration Act) because he failed to submit a personal statement to the Minister outlining why he would be at risk if he were returned to Sri Lanka. According to Justice McKeown, paragraphs 19(1)(e), 19(1)(f) and 53(1)(b) of the Act do not violate Mr. Suresh"s exercise of expressive and associational freedoms, nor do they constitute cruel and unusual punishment or treatment. Finally, Justice McKeown held that the expression "danger to the security of Canada" was not unconstitutionally vague. In dismissing Mr. Suresh"s application for judicial review, Justice McKeown certified the following three questions of general public importance pursuant to subsection 83(1) of the Act :

1.      Do ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act infringe freedoms guaranteed under ss. 2(b) and 2(d) of the Charter and if they do, is that demonstrably justified in a free and democratic society within s. 1 of the Charter?

2.      (A)      Does ss. 53(1)(h) of the Immigration Act infringe section 7 of the Charter and if it does, is that demonstrably justified in a free and democratic society within s. 1 of the Charter?

(B)      Are the principles of fairness at common law and the principles of fundamental justice under section 7 of the Charter met by the present administrative process for the determination by the Minister under section 53(1) of the Immigration Act of whether in her opinion a person constitutes a danger to the security of Canada, given that the Court has read into this subsection a determination by the Minister of the risk of torture a person may face if removed to a particular country?

3.      Is it contrary to this Charter to deport a Convention refugee from Canada to his or her country of origin if that person is the subject of a s. 40.1 security certificate, the reasonableness of which has been upheld, is a person described under ss. 19(1)(e) and (f) of the Immigration Act and has been found by the Minister of Citizenship and Immigration, pursuant to ss. 53(1)(b) of the Act, to be a danger to the security of Canada?

[9]      I turn now to the merits of the stay application.

ANALYSIS

[10]      With respect to the tripartite test for granting a stay, it is common ground that the certified questions raise serious issues and, therefore, the first prong of the test is satisfied. In my view, the more problematic aspect of this case pertains to the second part of the three-pronged test, namely, the issue of irreparable harm.

[11]      The evidence before me is that if Mr. Suresh is deported, he will be deported to Sri Lanka, as no other country is prepared to accept him. Within this context, the general thrust of Mr. Suresh"s argument is that if he is deported to Sri Lanka, it is likely that he will be detained by the Sri Lankan authorities on arrival and subjected to torture. In response, the Minister points out that the Government of Canada has received written assurances from representatives of the Sri Lankan government that although Mr. Suresh may be detained upon his return, "he would not be subjected to torture or degrading treatment". In reply, counsel for Mr. Suresh maintains that such assurances are hollow promises in light of the documented history of human rights abuses perpetrated by Sri Lankan police on those believed to be members of the LTTE. At issue is the ability of the Sri Lankan government to exert sufficient influence over those responsible for enforcing the laws of that country.

[12]      Based on the documentary evidence, I have no doubt that Mr. Suresh will be detained by the authorities upon his arrival in Sri Lanka. Not only has Mr. Suresh"s case garnered widespread attention in Canada, it has also attracted the attention of the Sri Lankan authorities, both in Canada and Sri Lanka. Unfortunately, I am not as confident that Mr. Suresh"s basic human rights will be respected once he is detained. This is not to suggest that the appropriate standard of risk assessment for irreparable harm is absolute certainty. The jurisprudence clearly states otherwise. Yet it is difficult to speculate on the fate that may await a person who is to be deported to a country whose human rights record falls below international or Canadian standards. I have always found it difficult to accept that when the House of Lords formulated the tripartite test in its seminal decision of American Cyanamid Co. v. Ethicon Ltd. , [1975] A.C. 396, consideration was ever given to its applicability in the human rights context. It is only in a commercial context such as that which presented itself in American Cynamid that any court would characterize irreparable harm in terms of that which cannot be compensated in monetary terms. No transgression of a basic human right can be accurately measured or compensated by money. This is particularly true in immigration cases involving deportation to a country which fails to abide by international norms respecting human rights. Nevertheless, it is equally true that there is no absolute right to remain in Canada, particularly for those whom the Minister has reasonable grounds to believe are terrorists or active supporters of terrorism. Ultimately, the balance of convenience may have to favour the public interest over the interests of a person who is to be deported to a country where human rights abuses exist. However, it is not necessary at this stage to dwell on the fate that may await Mr. Suresh if he is returned to Sri Lanka, for there is an alternate basis upon which to find that he will suffer irreparable harm if his stay application is not granted.

[13]      Clearly, the issue of irreparable harm can be answered in one of two ways. The first involves an assessment of the risk of personal harm if a person is deported or deported to a particular country. The second involves an assessment of the effect of a denial of a stay application on a person"s right to have the merits of his or her case determined and to enjoy the benefits associated with a positive ruling.

[14]      The alternative argument advanced by counsel for Mr. Suresh is that his pending appeal will be rendered "moot" or "nugatory" if he is deported prior to the hearing of his appeal. Assuming that Mr. Suresh is deported and detained in Sri Lanka prior to that proceeding, and assuming that he is successful on appeal, Mr. Suresh"s successful constitutional challenge would be a hollow victory, since the Sri Lankan authorities would be unlikely to release him and, therefore, he would be unable to avail himself of the fruits of his victory, most likely, the right to remain in Canada until such time as his case is disposed of in accordance with the Charter . Were he to remain in Canada and be successful on his appeal, I take it for granted that the Minister would be unable to act on the deportation order.

[15]      The jurisprudence makes it clear that the Ontario courts have been moved, in part, to grant injunctive relief on this very basis, even though such relief had already been refused in the Federal Court and proceedings were ongoing. In this regard, I need go no further than the present case. As noted earlier, the Trial Division of this Court refused to stay the deportation of Mr. Suresh pending the outcome of the judicial review application before Justice McKeown. Thus, Mr. Suresh brought an application in the Ontario Court (General Division) for a declaration that the deportation order and the legislation on which it was based were unconstitutional, and for an order preventing the Minister from removing him from Canada pending the outcome of that application. The Ontario Court stayed the declaratory component of Mr. Suresh"s application, but granted injunctive relief restraining the Minister from removing him from Canada until ten days after his application for judicial review in the Federal Court had been determined. Since the Ontario injunction against deportation expired, Mr. Suresh has turned to this Court for the same relief pending the disposition of his appeal from the judicial review application.

[16]      There is no doubt that the exercise of concurrent jurisdiction by two superior courts of record with respect to the same constitutional challenges to federal legislation, such as the Immigration Act, is highly problematic. It is not a question of whether two superior courts have concurrent jurisdiction over the constitutional validity of federal legislation; rather it is a question of whether concurrent proceedings can be brought by the same party in two superior courts simultaneously. It is equally problematic that one superior court would grant injunctive relief after another has already denied that very relief. The prohibition against collateral attacks on orders of a superior court is well entrenched in the jurisprudence of the Supreme Court: see Wilson v. R., [1983] 2 S.C.R. 594. Furthermore, to permit concurrent proceedings makes it appear as if one superior court is exercising supervisory jurisdiction over another. Only the Supreme Court of Canada has that supervisory mandate. Admittedly, the Ontario courts are cognizant of the role of the Federal Court in immigration matters and are reluctant to assume jurisdiction unless there are compelling reasons. As I read the jurisprudence, the only reason the Ontario courts have been prepared to entertain concurrent proceedings stems from the fact that the denial of injunctive relief would render the proceedings in the Federal Court moot. In this regard, I respectfully agree with the following comments of Justice Southey in Suresh v. R., [1999] 42 O.R.(3d) 797 (Divisional Court), aff"g [1998] 38 O.R.(3d) 267 (General Division):

[i]t appears to us that, barring the intervention of Lane J., the order made in the Federal Court of Canada on January 16, 1998, carried with it an unjustifiable risk of rendering practically nugatory any remedy available in the judicial review proceeding still alive in the Federal Court.

We note that the disposition by Lane J. on January 19, 1998, and January 28, 1998 ... interferes as little as possible with the role of the Federal Court or the statutory scheme created by Parliament. It reflects the jurisdictional deference which ought normally to govern these matters. [emphasis added]

[17]      Subject to the balance of convenience factor, it seems to me that appellants such as Mr. Suresh are entitled to have their day in court before being deported. If judges of the Trial Division are prepared to certify questions of general importance as a condition precedent to the Court of Appeal hearing an unrestricted appeal on the merits [on this latter point, see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39], then it is not unreasonable to defer the execution of a deportation or removal order in circumstances where it may ultimately be found that persons such as Mr. Suresh have not been dealt with as required by law. Similar reasoning may be applied to cases where leave to seek judicial review has been granted. These cases raise serious Charter issues relating to a complex scheme for removing persons from this country and the possibility that they would be exposed to inhumane treatment on arriving in their former homeland. Until such issues are decided, it is only just that the appellants such as Mr. Suresh be allowed to remain in Canada. While there may be instances in which a person can return to Canada following deportation and a successful appeal, this is not one of those cases.

[18]      The only question which remains is whether, on a balance of convenience, the stay should be granted. The third prong of the tripartite test requires me to balance the private interest of Mr. Suresh against the public interest. In my opinion, the former outweighs the latter.

[19]      I accept the Minister"s decision to classify Mr. Suresh as a danger to the security of Canada, as there are reasonable grounds to believe that Mr. Suresh represents a threat to Canada"s security. However, it is unclear whether Mr. Suresh was personally involved in acts of terrorism. In his reasons, Justice Teitelbaum indicates that he was, but the adjudicator failed to include this fact in the deportation order. What is clear is that Mr. Suresh has not committed any acts of violence in Canada. He is being deported largely because he is the leader of a Canadian organization which raises financial aid for a terrorist organization, namely, the LTTE. In short, there is no evidence to support a valid concern that Mr. Suresh"s presence in Canada represents a threat to the personal safety of Canadians. If he is returned to Sri Lanka, however, he will almost certainly be detained, and there is the possibility that he will be subjected to inhumane treatment. Finally, I note that Mr. Suresh was incarcerated from October 18, 1995 until March 23, 1998, and was released from prison on stringent bail conditions, which were the subject of an unsuccessful Charter challenge. There is no evidence to suggest that Mr. Suresh has breached any of the bail terms imposed upon him.

[20]      In concluding that the balance of convenience favours the private interest, I do not wish these reasons to be viewed as undermining the legitimate attempts of the Minister to deport those who actively support terrorist organizations and their violent objectives. Canada cannot and should not be viewed as a safe haven for terrorist groups, such as the LTTE, to engage in fund-raising activities. One only has to review the multitude of refugee claims in which the Refugee Division accepted that a claimant had been tortured at the hands of the LTTE to appreciate that the LTTE is a terrorist organization. Nevertheless, I do not believe that allowing Mr. Suresh to remain in Canada until such time as his appeal has been heard is going to adversely affect Canada"s reputation in the international community with respect to fighting terrorism. It merely demonstrates that Canada is committed to its obligations against the refoulement of persons to countries where human rights violations persist, at least until such time as any removal accords with the Charter .

[21]      In summary, there are serious Charter issues to be resolved with respect to Mr. Suresh"s appeal. Mr. Suresh would suffer irreparable harm if he were to be deported prior the hearing of his appeal, as it would be rendered moot for all intents and purposes. The balance of convenience also clearly favours Mr. Suresh. Surely, the public interest is not going to be seriously affected if Mr. Suresh remains in Canada for a few more months - he has already been living in Canada for close to nine years.

[22]      During the teleconference call, counsel for Mr. Suresh indicated that if this Court were prepared to grant a stay, they would be prepared to pursue the appeal in an expedited fashion and, in fact, are presently doing so. For the above reasons, I will grant the stay requested and order Mr. Suresh to obtain a hearing date from the Judicial Administrator for the appeal in A-415-99 by Friday, August 6, 1999. The hearing date shall be as soon as practicable.

     "Joseph T. Robertson"

     J.A.