BETWEEN:
and
AND IMMIGRATION
SOLICITOR GENERAL OF CANADA
Respondents
Hearing held at Montréal, Quebec, on February 19, 2007.
Judgment delivered at Montréal, Quebec, on February 22, 2007.
REASONS FOR JUDGMENT: DESJARDINS J.A.
CONCURRED IN BY: DÉCARY J.A.
NADON J.A.
Date: 20070222
Docket: A-652-05
Citation: 2007 FCA 80
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NADON J.A.
BETWEEN :
ADIL CHARKAOUI
Appellant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
and
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
[1] We have before us an appeal from an order by Mr. Justice Simon Noël, designated judge of the Federal Court (2005 FC 1670, [2006] 3 F.C.R. 325), dismissing the appellant’s motion to stay proceedings and seeking a declaration that certain provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) are unconstitutional, and that the security certificate and arrest warrant signed and issued against him are invalid and of no force or effect.
[2] In July 2003, the appellant, Mr. Charkaoui, applied for protection under section 112 of the Act. On August 25, 2003, an officer responsible for the pre-removal risk assessment (PRRA) determined that there was a danger of torture, a risk to his life or a risk of cruel and unusual treatment or punishment if the appellant were to return to Morocco. On April 1, 2004, an officer responsible for assessing the appellant’s dangerousness determined that Mr. Charkaoui was a danger to the security of Canada. On August 6 (addendum dated August 20, 2004), the delegate of the Minister of Citizenship and Immigration, with these two reports before her, dismissed the appellant’s application for protection. She determined that the appellant was not faced with a serious and personal danger of torture or a risk of cruel and unusual treatment or punishment if he were to return to Morocco and that, if she were underestimating the risk, the exceptional circumstances test justified the appellant’s removal to Morocco despite the danger of torture.
[3] On March 22, 2005, the decision to dismiss the application for protection was set aside by the Federal Court, as the Minister had informed the Court that a new PRRA should be done because there were new facts, namely that Morocco had issued an international arrest warrant for the appellant.
[4] The appellant is now awaiting a decision on his second application for protection. The reasonableness of the security certificate issued against him has not yet been examined.
[5] Before us, the appellant in essence submits that the provisions of the Act and the Regulations, inter alia the PRRA provisions (paragraph 95(1)(c) in fine, sections 98, 112, paragraphs 112(3)(d), 113(b)(c), subparagraphs113 (d)(i) and (ii), and subsection 115(2) of the Act in connection with subsection 77(2), paragraph 101(1)(f) and section 104 and the corresponding regulatory provisions, namely subsections 167 to 172 of the Regulations), breach sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights as well as the international conventions signed by Canada.
[6] The appellant submits that he is not challenging the Supreme Court of Canada’s decision in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, but that this matter is different from the one before us. He has acknowledged in his arguments that if we interpret Suresh in the same manner as the designated judge – an interpretation with which he obviously does not agree – the debate before us would be moot.
[7] For my part, I interpret Suresh in the same manner as the designated judge.
[8] Suresh challenged paragraph 53(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, in regard to section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada first states its findings at paragraph 5 of its reasons:
We conclude that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter. The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act accordingly. Properly applied, the legislation conforms to the Charter. We reject the arguments that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague and that ss. 19 and 53(1)(b) of the Act violate the Charter guarantees of free expression and free association, and conclude that the Act’s impugned procedures, properly followed, are constitutional. We believe these findings leave ample scope to Parliament to adopt new laws and devise new approaches to the pressing problem of terrorism.
[Emphasis added.]
[9] The Court then explained, at paragraphs 77, 78 and 79 of its reasons:
The Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution. This requires the Minister to balance the relevant factors in the case before her. As stated in Rehman, supra, at para. 56, per Lord Hoffmann:
The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee.
Similarly, Lord Slynn of Hadley stated, at para. 16:
Whether there is . . . a real possibility [of an adverse effect on the U.K. even if it is not direct or immediate] is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to th[e] individual if a deportation order is made.
In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.
We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 “only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like”: see Re B.C. Motor Vehicle Act, supra, at p. 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (S.C.C.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.
In these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter. What is at issue is not the legislation, but the Minister’s obligation to exercise the discretion s. 53 confers in a constitutional manner.
[Emphasis added.]
[10] The designated judge properly acknowledged that Suresh validated the balancing exercise provided under subsection 53(1) of the former act, now found under subparagraph 113(d)(ii) and subsection 115(2) of the Act and under section 172 of the Regulations. The Act was not declared unconstitutional. Properly applied, the Act is consistent with the Charter. The Minister must however exercise his discretion accordingly (“en conséquence”) (Suresh, at paragraph 5).
[11] The principles of Suresh were reiterated by our Court in Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, [2005] 3 F.C.R. 142, at paragraph 126.
[12] In an attempt to distinguish this case from Suresh, the appellant pointed out paragraph 3(3)(f) of the Act, a provision that was not considered by the Supreme Court in Suresh and did not exist in the former act. He also refers to this Court’s decision in de Guzman v. Minister of Citizenship and Immigration, 2005 FCA 436, [2006] 3 F.C.R. 655. This Court’s decision in de Guzman had not yet been rendered when the designated judge made his decision. Only the Federal Court’s decision in de Guzman (2004 FC 1276, [2005] 2 F.C.R. 162) had been rendered.
[13] The decision of the designated judge Mr. Justice Simon Noël is nevertheless consistent with this Court’s decision in de Guzman, where the Court states at paragraph 83 of the reasons:
[83] On its face, the directive contained in paragraph 3(3)(f) that the IRPA “is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory”, is quite clear: the IRPA must be interpreted and applied consistently with an instrument to which paragraph 3(3)(f) applies, unless, on the modern approach to statutory interpretation, this is impossible.
[Emphasis added.]
[14] This Court decided in de Guzman that the international human rights instruments to which Canada is signatory are determinative in terms of how the Act should be to interpreted and implemented, but only “in the absence of a clear legislative intent to the contrary” (paragraphs 75 and 108).
[15] The designated judge, after reviewing the scope of paragraph 3(3)(f) of the Act according to the modern interpretation method, and after noting that the provisions of the Act and of the Regulations expressly provide for a balancing exercise, was therefore correct to determine at paragraph 44 of his reasons:
To summarize, the decision in Suresh, supra, upheld the balancing mechanism set out in the IRPA. 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.
[16] The legislative and regulatory provisions at issue are therefore valid. As the second PRRA is still pending, the Court does not have a factual record enabling it to rule on the validity of their application in this case. The designated judge was correct in refusing to decide what is in essence a moot question, for the time being.
[17] The appellant also argued that the delays of the Minister or the Minister’s delegate in responding to the applications for protection were excessive and amounted to cruel and unusual treatment within the meaning of sections 7 and 12 of the Charter or within the meaning of the Convention against Torture.
[18] The designated judge dismissed these arguments on the grounds that the process provided under the Act was complex, which took time, and moreover that the appellant himself had asked for the proceedings to be suspended, thereby availing himself of the legislative measures conferred to him under the Act.
[19] The designated judge made no error in deciding as he did.
[20] I would dismiss the appeal with costs.
“Alice Desjardins”
“I concur.”
“Robert Décary, J.A. “
“I concur.”
“Marc Nadon, J.A.”
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-652-05
APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE SIMON NOËL OF THE FEDERAL COURT DATED DECEMBER 9, 2005.
STYLE OF CAUSE: Adil Charkaoui v. Minister of Citizenship and Immigration et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 19, 2007
REASONS FOR JUDGMENT: DESJARDINS J.A.
NADON J.A.
DATE OF REASONS: February 22, 2007
APPEARANCES:
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FOR THE APPELLANT
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Luc Cadieux
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
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FOR THE APPELLANT
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Deputy Attorney General of Canada |
FOR THE RESPONDENTS
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