Date: 19990315
Docket: DES-4-93
BETWEEN:
MANSOUR AHANI,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
SOLICITOR GENERAL FOR CANADA,
Respondents.
REASONS FOR ORDER
DENAULT J.:
[1] This is an application for release from detention pursuant to subsections 40.1(8) and (9) of the Immigration Act 1 (the "Act").
[2] The applicant has been detained since 1993 by virtue of a certificate issued by the Solicitor General of Canada and the Minister of Employment and Immigration pursuant to subsection 40.1(1) of the Act stating that they are of the opinion that, based on security reports provided by the Canadian Security Intelligence Service (the "Service"), he is a member of an inadmissible class of persons as described in the anti-terrorism provisions in subparagraph 19(1)(e)(iii), clause 19(1)(e)(iv)(C), subparagraph 19(1)(f)(ii), clause 19(1)(f)(iii)(B) and paragraph 19(1)(g) of the Act . The applicant"s lengthy detention must be viewed and understood in the context of his case"s procedural history.
[3] Following the issuance of the certificate in June 1993, the matter was referred to the Federal Court of Canada for a determination as to the certificate"s reasonableness. In accordance with the Act , an in camera hearing was convened shortly thereafter in which I, as designated judge, reviewed the security reports and other evidence presented by the Ministers, and provided the applicant with a statement summarizing the evidence. However, rather than immediately availing himself of his right to be heard pursuant to paragraph 40.1(4)(c), the applicant launched a challenge to the constitutional validity of the statutory scheme provided in section 40.1 of the Act. The action was heard by McGillis J. and eventually dismissed in September 1995 2, as was the applicant"s appeal to the Federal Court of Appeal in July 1996.3 Leave to appeal was sought from the Supreme Court of Canada but denied in July 1997, finally putting the matter to rest four years after the applicant"s initial detention.4
[4] A hearing into the reasonableness of the certificate was then held over a two-week period in February 1998 at the end of which it was found to be reasonable 5, i.e., that there are reasonable grounds to believe that the applicant is a person who has engaged in terrorism 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.
[5] A removal order was made on April 28, 1998, which combined with the issuance of the Minister of Citizenship and Immigration"s opinion that the applicant presented a danger to the security of Canada on August 12, 1998, paved the way for the applicant"s removal to Iran, his country of citizenship.6 However, when the Minister tried to effect removal on August 28, 1998, the applicant initiated a series of proceedings to stay the deportation, first, before the Trial Division of this Court 7, and having been unsuccessful there, before the Ontario Court General Division.8 He also initiated in this Court a further constitutional challenge to the anti-terrorism provisions of subsection 19(1) and paragraph 53(1) of the Act (danger to the public)9, and obtained an interim injunction preventing his removal from Canada pending the determination of this action.10
[6] It is within this context that the applicant applied to be released from detention. Pursuant to subsection 40.1(8), a person detained pursuant to a certificate issued under 40.1(1) which has not been quashed by the Court may apply to the Chief Justice of this Court or a judge designated by him to be released from detention if his removal has not been effected within 120 days of the issuance of the removal order. Under subsection 40.1(9), the Court can order the person"s release if it is satisfied that, first, the applicant will not be removed from Canada within a reasonable time, and second, that his release would not be injurious to national security or to the safety of persons:
| 40.1(8) Where a person is detained under subsection (7) and is not removed from Canada within 120 days after the making of the removal order relating to that person, the person may apply to the Chief Justice of the Federal Court or to a judge of the Federal Court designated by the Chief Justice for the purposes of this section for an order under subsection (9). |
40.1(8) La personne retenue en vertu du paragraphe (7) peut, si elle n'est pas renvoyée du Canada dans les cent vingt jours suivant la prise de la mesure de renvoi, demander au juge en chef de la Cour fédérale ou au juge de cette cour qu'il délègue pour l'application du présent article de rendre l'ordonnance visée au paragraphe (9). |
| 40.1(9) On an application referred to in subsection (8) the Chief Justice or the designated judge may, subject to such terms and conditions as the Chief Justice or designated judge deems appropriate, order that the person be released from detention if the Chief Justice or designated judge is satisfied that (a) the person will not be removed from Canada within a reasonable time; and (b) the person's release would not be injurious to national security or to the safety of persons. |
40.1(9) Sur présentation de la demande visée au paragraphe (8), le juge en chef ou son délégué ordonne, aux conditions qu'il estime indiquées, que l'intéressé soit mis en liberté s'il estime que_: a) d'une part, il ne sera pas renvoyé du Canada dans un délai raisonnable; b) d'autre part, sa mise en liberté ne porterait pas atteinte à la sécurité nationale ou à celle de personnes. |
[7] In conjunction with his application, the applicant also filed a notice of constitutional question challenging the constitutional validity of paragraphs 40.1(9)(a) and (b) of the Act, alleging that they violate his right to liberty contrary to section 7 of the Charter of Rights and Freedoms (the "Charter").
[8] Having been chosen as the designated judge at the beginning of this matter in 1993, I was called upon to hear the application in November 1998, at which time the applicant called for my recusation. Dismissing that motion 11, I proceeded to hear the application for release.
[9] First, pursuant to paragraph 40.1(10)(a), an in camera hearing took place and a statement summarizing the information available was provided to the applicant pursuant to 40.1(10)(b). In short, the respondents hold in that statement that since it was previously found that there are reasonable grounds to believe that the applicant is a member of the Iranian Ministry of Intelligence and Security (MOIS), an agency which sponsors, or undertakes a wide range of terrorist activities including the assassination of political dissidents worldwide, and in view of MOIS" threat to the safety of persons in Canada and abroad, there are reasons to believe that the applicant, because of his past training and experience, remains capable of conducting or of assisting the MOIS in conducting surveys and assassination operations. The Service is of the view that, even if released on terms and conditions, the applicant would not comply with them.
[10] Second, the applicant was provided with a reasonable opportunity to be heard in conformity with paragraph 40.1(10)(c). Over the course of this two-day public hearing which took place in Toronto in January 1999, the applicant called upon many witnesses to testify including correctional officers from Don Jail in Toronto where he is being detained; a prospective employer in the import/export business for which the applicant has no experience; and a retired military who offers to give him shelter should he be released. The applicant himself testified that his reactivation by the Iranian government was unlikely given the publicity surrounding his case. He also stated that he has had no contact with the Iranian government since his detention and that if he were contacted, he would not respond and report it to CSIS. He also testified having borrowed $3,000 for bail, and finally, he stated that he would abide by terms and conditions fixed by the Court.
[11] The respondent called upon two witnesses. An enforcement officer employed by Citizenship and Immigration Canada testified that the Minister still intends to remove the applicant once there are no more legal roadblocks and that it can be done within 24 to 48 hours. The Deputy Director General, Operations, in the Toronto Regional Office of CSIS reiterated the Service"s concerns for public safety in Canada in that the applicant has extensive weapons training, has been associated with a known assassin and may still be reactivated by the Iranian government. The applicant"s potential disappearance might also be a cause of concern.
[12] Third, after the public hearing, a second in camera hearing was held in Ottawa on January 22, 1999. As is the case in such instances, information gathered at this hearing cannot be disclosed or be subject to comment on the grounds that it would be injurious to national security or to the safety of persons.
Constitutional Validity of 40.1(9)
[13] As previously indicated, the applicant challenged the validity of both paragraphs 40.1(9)(a) and (b) of the Act charging that they infringed his right to liberty contrary to section 7 of the Charter. However, after the evidence was closed at the public hearing, the applicant dropped his attack on paragraph (a), pursuing only with his challenge to paragraph (b). Specifically, he argued that the criterion of "national security" as a basis for detention violates section 7 of the Charter because it authorizes detention in terms which are vague and imprecise. Vagueness can be raised under section 7 since it is a principal of fundamental justice that laws may not be too vague.
[14] In my view, it is not so much national security which is at stake in the case but the safety of persons in Canada. This can be seen from the statement that was served upon the applicant as well as from the evidence adduced in the second in camera hearing. For example, in the statement, the Service reviews the threat posed by MOIS to Iranian dissidents who are abroad and concludes that the applicant poses such a threat to dissidents in Canada in light of his training and past behaviour:
| MOIS threat to the safety of persons in Canada and or abroad |
| 7. The Government of Iran maintains power through widespread repression and intimidation. The Judiciary of Iran is subject to government and religious influence. Several agencies share responsibility for internal security, including MOIS and the Revolutionary Guards, a military force established after the revolution. Systematic extra-judicial killings and summary executions are reported. Amnesty International (AI) reported that at least 110 persons were executed in 1996 and 137 executions were reported through November (1997). Exiles and human rights monitors state that many of those executed for criminal offenses, primarily on narcotics charges, are actually political dissidents. Investigations of the killing of political dissidents abroad continued in 1997 |
| . . . |
| 8. Lethal targeting operations undertaken on behalf of the Ministry of Intelligence and Security (MOIS) are generated by fatwas or religious decrees which are authorized by a high-level Iranian judicial review committee also referred to as a Special Operations Committee. According to a media report, the Special Operations Committee met in Tehran in April 1997 and focussed on the "immediacy" of the danger pointing out that the Iranian side has called on its partisans to brace for embarking on a worldwide and unprecedented campaign of terror. The reports noted that it was the most serious terrorist meeting to be convened in Tehran in months. As a result, warnings have been sent out to a number of Western and Arab capitals that serious developments were in the offing, and would escalate into an open war that could potentially reach Europe and possibly as far as the United States. |
| ... |
| 12. After more than five years of detention, it is the Service's opinion that AHANI remains a threat to national security and safety of persons. He has been trained to conduct assassinations and has extensive training in killing operations. He has been trained in handling and transportation of weaponry, counter-surveillance techniques and has proven in the past that from an inactive position he could be reactivated on a single phone call. In the context of the threats posed to Iranian dissidents in Canada and abroad by the MOIS, it is the Service's belief that Mansour AHANI remains capable of conducting, or of assisting the MOIS in conducting surveys and assassination operations. "My emphasis > |
[15] Given that the applicant"s detention is alleged to be warranted to preserve the safety of persons in Canada, it serves no practical purpose in the context of the present application to determine whether the "national security" criterion is too vague as to be unconstitutional.
Review of Detention
[16] Turning now to the question of release, two legal issues must first be addressed before making any findings in regard to the evidence: (a) what is the onus of proof in an application under subsections 40.1(8) and (9)?, and (b) what is the standard of proof?
(a) Onus of Proof
[17] According to the applicant, the Ministers should bear the onus of showing that the applicant does not meet the statutory criteria for release provided in subsection 40.1(9). While no express allocation of the burden is provided in subsection 40.1(9), the Ministers should shoulder the burden because the applicant"s right to liberty is being curtailed.
[18] In my view, a quick and simple reading of subsections 40.1(7), (8) and (9) of the Act establishes that it is the applicant who bears the onus of showing that his removal will not occur within a reasonable time and that his release would not be injurious to national security or to the safety of persons. First, the right to apply encompassed in subsection 40.1(8) clearly belongs to "...a person... detained under subsection (7) ..." . So the applicant is the one entitled to bring the application for release and therefore he bears the onus of demonstrating why his release complies with the statutory criteria.
[19] Second, while I agree that subsection 40.1(9) does not specifically state on whose shoulders the burden rests, the plain reading of the subsection indicates that it is on the applicant"s since the provision stipulates that the detained person may be released from detention if the judge is satisfied that the person will not be removed within a reasonable time and that his release would not be injurious to national security or to the safety of persons. Had Parliament intended to put the onus on the respondents, it would have put the obligation in a positive instead of a negative form. Had the sentence read "... if the Chief Justice or designated judge is satisfied that (a) the person will be removed from Canada within a reasonable time; and (b) the person"s release would be injurious to national security or to the safety of person", the burden would then clearly have been on the Ministers" shoulders. Since this is not the case, it clearly belongs, in my view, to the applicant to show that his release complies with the statutory criteria.
(b) Standard of Proof
[20] Counsel for the applicant urged that the evidence be assessed by the designated judge on the civil standard of proof rather than on the lesser standard of reasonableness used in determinations made under paragraph 40.1(4)(b) (review of certification). Release from detention is a different determination than the one made under paragraph 40.1(4)(b). The designated judge must assess the probability that actual harm will be done to national security or to the safety of persons, not simply that there are reasonable grounds to believe that there is a risk of harm.
[21] In my view, the judge should not order the release if he or she is satisfied that there are reasonable grounds to believe that the applicant does not meet the statutory criteria. Pursuant to paragraph 40.1(7)(a) of the Act, the certificate previously reviewed by the Court is conclusive proof that the applicant is a person that there are reasonable grounds to believe 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. On a motion like the one before the Court, the designated judge does not have to retry the merit of the case. According to the scheme of the Act, this is the first element that has to be considered by the Chief Justice or the designated judge when he or she examines an application for release. It must be remembered that in order to come to the conclusion that the applicant was a person of an inadmissible class, the standard of proof was not high. The Court did not have to be satisfied that the person was actually engaged in terrorism but rather that there were reasonable grounds to believe that the person 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.
[22] Furthermore, I am of the view that insofar as an application for release is not a hearing de novo on the merit of the status of the applicant but only on the question of whether he should be released on terms and conditions as long as he meets the two criteria of subsection 40.1(9)(a) and (b), not only is the role of the judge limited, but he or she is bound by the previous determination of reasonableness which is conclusive proof that the person is a threat to Canada.
(c) Findings
[23] With respect to the first criteria found in paragraph 40.1(9)(a), I am satisfied that the applicant"s removal could and will be effected within a reasonable time as long as he does not make use of redundant and endless recourses for which he himself is responsible. In fact, the evidence shows that it is not the Minister"s fault that removal was not effected within 120 days, but rather because of the applicant"s desperate actions to avoid deportation. The evidence further reveals that the Minister remains ready to remove the applicant and will do so within a matter of days once there are no more legal roadblocks.
[24] Given that the first criterion has not been met, it is unnecessary to determine whether the applicant has satisfied the second since both must be met before the Court can order his release.12 Nevertheless, I will add that the applicant"s evidence failed to convince me that his release, even on terms and conditions, would not injure the safety of persons in Canada. In fact, the respondent"s evidence has persuaded me that there are reasonable grounds to believe that his release would in fact be injurious to the safety of persons in Canada, particularly Iranian dissidents.
[25] For these reasons, the application for release from detention is dismissed.
______________________________
Judge
Ottawa, Ontario
March 15,1999
__________________3 (1996), 201 N.R. 233 (F.C.A.).
5 (April 17, 1998), DES-4-93 (F.C. T.D.).
6 The applicant was determined to be a Convention refugee by the Convention Refugee Determination Division of the Immigration and Refugee Board on April 1, 1992 and, as a result, cannot be subject to refoulement unless the Minister is of the opinion that he constitutes a danger to the security of Canada as provided in paragraph 53(1)(b) of the Act.
7 In file IMM-4204-98, the applicant applied for leave to commence judicial review proceedings from the decision of the Minister made pursuant to paragraph 53(1)(b). His motion for a stay of execution was denied by Rothstein J. on August 21, 1998.
8 The applicant applied for declatory relief in the Ontario Court (General Division) on constitutional grounds.
9 The action is filed under T-1767-98.
10 (September 28, 1998), T-1767-98 (F.C. T.D.) per Campbell J. The interim order is currently under appeal in the Federal Court of Appeal.
11 (November 27, 1998), DES-4-93 (F.C. T.D.).
12 It also reinforces my position that it is unnecessary to deal with the constitutional validity of the "national security" criterion.