Date: 19981704
Dossier: DES-4-93
IN THE MATTER of a certificate issued pursuant to Section 40.1 of the Immigration Act;
AND IN THE MATTER of the referral of such a certificate to the Federal Court of Canada pursuant to section 40.1(3)(a) of the said Act;
IN RELATION TO: MANSOUR AHANI,
REASONS for ORDER
DENAULT J:
[1] In this case, the Solicitor General of Canada and the Minister of Employment and Immigration signed in June 1993 a certificate, pursuant to subsection 40.1(1) of the Immigration Act, stating their opinion, based on security intelligence reports received and considered by them, that Mansour Ahani is an inadmissible person in Canada as described in subparagraphs 19(1)(e)(iii) and (iv)(C), 19(1)(f)(ii) and (iii)(B) and paragraph 19(1)(g) of the Act1. This Court is now called upon to decide whether the certificate issued by the Ministers2 is reasonable on the basis of the evidence and information available to the Court, after a nine-day hearing in Toronto and two in camera hearings held in Ottawa.
Chronology of events
[2] Since the Respondent has been detained for close to five years, it is appropriate that the chronology of events that occurred in that file be related.
[3] Pursuant to subsection 40.1(1) of the Act, the certificate of the Ministers was filed with an immigration officer on June 15, 1993. The Minister of Immigration caused a copy of the certificate to be referred on June 17, 1993 to the Federal Court of Canada for determination as to whether the certificate should be quashed. As required by paragraph 40.1(2)(b) of the Act, Mr. Ahani was detained from that date. On June 18, 1993, the Minister of Immigration caused a Notice to be served on Mr. Ahani, according to subparagraph 40.1(3)(b) of the Act, informing him that a certificate under section 40.1 had been filed and that following a reference to the Federal Court of Canada a deportation order may be made against him.
[4] On June 22, 1993, in accordance with paragraph 40.1(4)(a) of the Act, I was designated by the Chief Justice of this Court for the purpose of section 40.1, convened an in camera hearing at which I examined the CSIR and heard other evidence or information presented on behalf of the Ministers in the absence of Mr. Ahani or his counsel on the grounds that disclosure would be injurious to national security or to the safety of persons. After this hearing, I issued a statement summarizing such information as to enable Mr. Ahani to be reasonably informed of the circumstances giving rise to this issue of a certificate and that he be given a reasonable opportunity to be heard at a time and place to be fixed by the Court. Mr. Ahani was later served with a copy of this Order and with a copy of the statement authorizing the information pursuant to section 40.1(4)(b) of the Immigration Act. He was also served with a letter advising him that he should contact the registrar of the Court to set a date for a reasonable opportunity to be heard pursuant to section 40.1(4)(c) of the Act. A supplement to the summary of June 2, 1993 was later provided to Mr. Ahani in November 1993. On December 24, 1993, counsel for Mr. Ahani filed a declaration and notice of constitutional question in the Federal Court Trial Division in which was sought a declaration that section 40.1 of the Act violated the Canadian Charter of Rights and Freedoms (the Charter) and was of no force and effect. These proceedings ultimately concluded in July 3, 1997 when the Supreme Court of Canada denied an application on the part of Mr. Ahani for leave to appeal the decision of the Federal Court of Appeal rendered July 4, 1996 finding that section 40.1 of the Act did not violate the Charter. In March and April 1994, further summaries of information were provided to Mr. Ahani by counsel for the Ministers, as well as, in December 1997, following an application for further information by the Respondent's counsel.
[5] The hearing providing Mr. Ahani with a reasonable opportunity to be heard commenced on February 10, 1998 in Toronto and continued for nine days to February 20, 1998. On February 23, 1998, an in camera hearing in the absence of Mr. Ahani and his counsel was held in Ottawa to consider two issues arising out of proceedings and trial.
Role of the Court
[6] The role of the Court in proceedings pursuant to section 40.1 of the Act is narrowly circumscribed. Paragraph 40.1(4)(d) states that following the issuance of a certificate by the Minister of Immigration and the Solicitor General of Canada, the designated judge shall "determine whether the certificate... is reasonable on the basis of the evidence and information available to... the designated judge... and, if found not to be reasonable, quash the certificate." In the case of Ahani v. Canada3 the Federal Court of Appeal adopted the reasons of McGillis J of the Federal Court Trial Division, who stated: "the proceedings under section 40.1 of the Immigration Act are directed solely and exclusively to determining the reasonableness of the ministerial certificate identifying the named person as a member of certain inadmissible classes of persons." In short, as I have already stated in R v. Baroud4: " ... the role of this Court is not to substitute its decision for that of the Minister and the Solicitor General nor is it to find that they were correct in their assessment of the evidence presented to them but rather to find whether or not, based on the information and evidence presented to this Court, the Ministers' certificate is a reasonable one."
Standard of proof
[7] In this instance, the certificate was issued by the Ministers on the basis of security intelligence reports alleging that Mr. Ahani is inadmissible in Canada because he falls within the categories of persons described in subparagraphs 19(1)(e)(iii) and (iv)(C), 19(1)(f)(ii) and (iii)(B) and paragraph 19(1)(g) of the Act.
[8] With respect to the standard of proof to be applied in a matter such as this one, subparagraphs 19(1)(e)(iii) and 19(1)(f)(ii) require evidence of reasonable grounds to believe that the person will engage in or has engaged in terrorism. With respect to this last category, the legislation does not require proof that the person actually engaged in terrorism but rather, it is sufficient to show that there are reasonable grounds to believe that the person has engaged in terrorism.
[9] With respect to subparagraphs 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B), it is required that there be reasonable grounds to believe the person is or was a member of an organization that there are reasonable grounds to believe will engage in or is or was engaged in terrorism. Insofar as clause 19(1)(f)(iii)(B) of the Act is concerned, it must be shown that there are reasonable grounds to believe that the person named in the certificate is or was a member of an organization that there are reasonable grounds to believe that this organization is or was engaged in terrorism. This does not mean that there must be proof that the organization is a terrorist organization nor that the Respondent is or was an actual member of such an organization but only that there are reasonable grounds to believe he is or was a member of such an organization.
[10] Finally, subparagraph 19(1)(g) of the Act requires that there be reasonable grounds to believe that the person in question will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence.
[11] In Farahi-Madavieh5, I have already stated that the proper test to establish "reasonable grounds to believe" in certain of the inadmissible categories of persons was the one set out in A.G. v. Joly6 where Thurlow J.A., on behalf of the Federal Court of Appeal, in reviewing the justification for an allegation that a potential visitor was a member of a subversive organization, said:
| But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression reasonable grounds for believing implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. |
Allegations made by the Canadian Security Intelligence Service (the Service)
[12] In the statement summarizing information pursuant to paragraph 40.1(4)(d) of the Act, the Service claims that there are reasonable grounds to believe that the Respondent is a member of the Iranian Ministry of Intelligence Security (MOIS), which sponsors, or undertakes directly a wide range of terrorist activities including the assassination of political dissidents world-wide. It is alleged that the Respondent has received a specialized training from this organization which qualifies him as an assassin. They further allege that after he was granted refugee status in Canada, Mr. Ahani departed Canada for Europe where he was arrested in the company of Akbar Khoshkooshk, a known MOIS assassin, and that even though he is now back in Canada, there are reasonable grounds to believe that while in Europe, Mr. Ahani was participating in a plot to assassinate a known Iranian dissident.
[13] Information with respect to the Respondent's activities came from various sources. Part of the information was collected through foreign intelligence agencies and divulged to the Court during in camera hearings, in the absence of Mr. Ahani and his counsel; this information cannot be disclosed for reasons of national security. The Court had also access to declarations made by the Respondent when he came to Canada in October 1991 and when he later filed his Personal Information Form, claiming political refugee status. A series of eight interviews were later conducted by the Service between November 1992 and March 1993 and the Respondent voluntarily submitted to a polygraph examination in February 1993. Finally, the Court heard the full version of the Respondent when he exercised his right to be heard and testified on his own behalf in order to oppose the reasonableness of the certificate issued by the Ministers.
Analysis
[14] Having reviewed all of the evidence and information presented to me, I am of the opinion that most if not all the facts sustaining the Service's allegations against the Respondent were established. In reality, far from denying, for instance, that he received specialized training when he was recruited into the secret service affiliated with the Iranian Prime Minister's Office, that he used false passports on many occasions, that he travelled to Europe upon request of his former trainer and friend Akbar Khoshkooshk, Mr. Ahani recognized all these facts as being true. But the Respondent either denied the objective of the organization he was enroled with or tried to provide what he considered a reasonable explanation for his behaviour in each circumstance that was seen by the Service as suspect.
[15] In fact, the credibility of Mr. Ahani is at the heart of the matter.
[16] In his testimony, Mr. Ahani denied that he was a member of MOIS and that he had been anything other than a member of units whose primary role, according to him, was to fight drug smuggling. While he readily admitted having used and travelled on numerous occasions with false passports, and having lied to immigration officials about his stay in Singapore and the route that he took to leave Iran to come to Canada, he suggested that the length of his detention in Iran and errors that he made with respect to dates were due only to apparent inconsistencies because of the use of a calendar with which those in charge of the questioning were not familiar.
[17] With respect to the interviews that were conducted by officers of the Service prior to the report being made to the Ministers, the Respondent raised concerns about the probative value of the reports of these interviews because they were not verbatim, the notes were eventually destroyed, and there was no interpreter in spite of his incapacity to express himself correctly in English. I do not agree that these reports ought to be set aside or ignored because of inaccuracies of words or terms. Each piece of evidence and information must be assessed not in isolation but in the context of all the facts and the story as a whole.
[18] The Respondent also had concerns about the polygraph examination that took place on February 12, 1993. Considerable emphasis was placed by his counsel on the alleged inaccuracy of the polygraph, and on the fact that the video and audio recordings were destroyed. The Court will not elaborate on that issue because it did not rely on that particular evidence in view of the weak degree of reliability that the courts of Canada ordinarily attach thereto, and in view of the circumstances in which it was conducted.
[19] In a case like this one, I recognize the difficulty for a Respondent and his counsel to know the case against him and to be fully informed and apprised of the nature of the evidence which form the basis for the security certificate issued pursuant to subsection 40.1(1) of the Act. It is important to note, however, that the issuance of a security certificate applies to persons other than Canadian citizens or permanent residents and refers to inadmissible classes of persons engaged in violence, espionage and subversion. The issues in such cases therefore involve national security interests and the scheme set out in section 40.1 of the Act affords the Respondent limited protection, with the exception of the opportunity to be heard.
[20] As mentioned above, the role of the designated judge is not to determine whether the Minister of Immigration and the Solicitor General were correct in their assessment of the evidence presented to them but rather, in accordance with paragraph 40.1(4)(d), the designated judge must determine whether the security certificate is reasonable on the basis of the evidence and information available to him or her, information which can not be the subject of a detailed analysis in this judgment on the grounds that it would be injurious to the national security or the security of persons if it were revealed.
[21] While I recognize that the terms "member", "organization" or "terrorism" are not defined in the Immigration Act, this Court must examine whether, in the circumstances of the case, there are reasonable grounds to believe that the Respondent has or will engage in terrorism or is or was a member of such an organization. In my view, since Parliament has decided not to define these terms, it is not incumbent upon this Court to define them. Counsel for the Respondent has submitted that the word "member" must be given a disjunctive interpretation instead of a cross-over interpretation so that a nexus may be made between an associational responsibility of membership and the conduct proscribed. While I agree that the disjunctive interpretation must be adopted so that the person's responsibility flowing from membership may be linked in time to the activities of the organization, I do not share the view that the word must be narrowly interpreted. I am rather of the view that it must receive a broad and unrestricted interpretation. As to the word "terrorism", while I agree with counsel for the Respondent that the word is not capable of a legal definition that would be neutral and non-discriminatory in its application, I am still of the opinion that the word must receive an unrestricted interpretation.
[22] In the present case, the Ministers are of the opinion that there are reasonable grounds to believe that the Respondent is a person who has engaged or will engage in terrorism or is or was a member of an organization that there are reasonable grounds to believe is or was engaged in terrorism. I can but agree with them.
[23] For the above reasons, I am satisfied that the certificate filed by the Minister of Employment and Immigration and the Solicitor General of Canada is reasonable on the basis of the evidence and information available to me. An order shall go accordingly.
J.F.C.C.
__________________1 Section 40.1 and subparagraphs 19(1)(e), (f) and (g) of the Act are reproduced in Annex.
2 While "the Ministers" refers to both the Solicitor General of Canada and the Minister of Employment and Immigration, Mr. Ahani will sometimes be referred to as "the Respondent".
3 [1995] 3 F.C.669, affirmed by (1995) 100 F.T.R. 261; leave to appeal to the Supreme Court of Canada was denied July 3, 1997.
4 (1995) 98 F.T.R. 99, p. 104.
5 63 F.T.R. 120
6 [1975] F.C. 216 (C.A.) page 225.