Date: 20011123
Docket: DES-5-01
Neutral citation: 2001 FCT 1288
BETWEEN:
IN THE MATTER OF a certificate pursuant to
section 40.1 of the Immigration Act, R.S.C. 1985,
c. 1-2, (the "Act");
AND IN THE MATTER OF the referral of that
Certificate to the Federal Court of Canada
pursuant to paragraph 40.1(3)(a) of the Act;
AND IN THE MATTER OF Hassan Almrei
[1] This is a decision on the merits under paragraph 40.1(4)(d) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, (the "Act"), as to whether a certificate filed by the Minister of Citizenship and Immigration and the Solicitor General of Canada pursuant to section 40.1 of the Act was reasonable.
I. Nature of the proceedings
[2] At the outset, I would like to provide an overview of the review mechanism established by section 40.1. My colleague McGillis J. provides an excellent summary in Ahani v. The Queen (1995) 100 F.T.R. 261.
[3] Under the scheme established in section 40.1, the Minister and the Solicitor General are required to make their decision that a person is a member of an inadmissible class solely on the basis of "security or criminal intelligence reports received and considered by them."
[4] The filing of the ministerial certificate with an immigration officer or other specified officials triggers various statutory procedures, including the mandatory detention of the named person and the reference of the certificate to this Court for a determination of its reasonableness.
[5] Within three days of the filing of the certificate, the Minister must "cause a notice to be sent" informing the named person that a certificate has been filed and that, following a reference to this Court, a deportation order may be made against him.
[6] Within seven days of the reference of the certificate to this Court, the Chief Justice or a judge designated by him must examine, in camera, the security or criminal intelligence reports considered by the Minister and the Solicitor General and hear any other evidence or information that may be presented on their behalf.
[7] The designated judge must then provide the named person with a statement summarizing the information available as will enable the person to be reasonably informed of the circumstances giving rise to the issuance of the certificate. The designated judge must also provide the named person with a reasonable opportunity to be heard.
[8] At the conclusion of the review, the designated judge must determine whether the certificate is reasonable on the basis of the evidence and information available. The determination made by the designated judge is not subject to appeal or review by any court. (For a more detailed summary, see Ahani, supra).
[9] It is now well accepted that the sole issue in proceedings pursuant to paragraph 40.1(4)(d) is whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the information available to the designated judge. As McGillis J. said in Ahani, supra at p. 268, "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. This section of the legislation does not deal with the question of deportation."
II. Background
[10] On October 16, 2001, the Minister of Immigration and Citizenship and the Solicitor General of Canada respectively signed a certificate under section 40.1 indicating that based on a security intelligence report received and considered by them, they were of the opinion that Hassan Almrei was a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) and subparagraph 19(2)(a.1)(ii).
[11] On October 19, 2001, the Minister referred the certificate to the Court under paragraph 40.1(3)(a) of the Act for a determination as to whether the certificate should be quashed.
[12] In accordance with paragraph 40.1(4)(a) of the Act, I conducted an in camera hearing within seven days of the reference of the certificate to the Court.
[13] On October 24, 2001, pursuant to paragraph 40.1(4)(b), I signed an Order requiring that a statement summarizing such information available to me as would enable the respondent to be reasonably informed of the circumstances giving rise to the issuance of the certificate, be served on Mr. Almrei. The Order further provides Mr. Almrei an opportunity to be heard in this matter in Toronto commencing, Tuesday, November 13, at 9:30 a.m.
[14] At the beginning of the hearing on November 13, the respondent's counsels requested that the hearing be adjourned, on the ground that they had not been retained yet by Mr. Almrei and that they had been denied access to their client. I granted the adjournment and the hearing resumed on November 19, 2001.
[15] At the outset of the hearing the applicant filed further documents resulting from a computer search made by the RCMP. They included, inter alia, numerous images of Osama Bin Laden and other Al Qaeda members, including hijacking planner Mohammed Atta, pictures of a plane cockpit, a security officer badge, copies of passports, military weapons, and pictures of Russian soldiers with identification documents.
[16] Counsel for the respondent then presented a motion to the Court requesting that the testimony of Mr. Almrei be heard in camera and that the Court hold a voir-dire in order to determine whether the respondent's testimony could be heard in camera. However, counsel did not provide an explanation to the Court as to why the totality of the testimony needed to be heard in camera except to state that it was not possible to sever those portions of the testimony which could be heard in public.
[17] In light of the fact that a substantial portion of his testimony would be in relation to the summary provided to him (already in the public domain), I suggested that Mr. Almrei testify in open court and should areas of concern arise, the hearing could be halted to provide counsel an opportunity to address those concerns. Proceeding in this manner would address Ms. Jackman's prior assertion that only some of Mr. Almrei's testimony might have to be heard in camera:
We have some concerns about some of the evidence that Mr. Almrei might give, which might have the potential of putting other people at risk. As a result, with respect to those aspects of his evidence, we would want it to be closed." (Transcript, vol. 1 at p. 6).
[18] However, following a brief adjournment, the respondent elected not to testify.
III. Request to be heard in camera
[19] The fundamental principle is that hearings should be held in public. The Court may direct that all or part of a proceeding be heard in camera if, after hearing the parties arguments, it is satisfied that the hearing should not be open to the public. This principle is reaffirmed by Rule 29(1)(2) of the Federal Court Rules.
[20] The Supreme Court of Canada in Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, established the principle that curtailment of public accessibility can only be justified where there is present the need to protect "social values of super ordinate importance". The Court pointed out at p. 183 that "publicity is the very soul of justice".
[21] In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, La Forest J. noted that the burden of displacing the presumption of openness rested on the party applying for the exclusion of the media and the public and that there must be a sufficient evidentiary basis on the record to support the exclusion (which may be presented in a voir-dire).
[22] Recently, in R. v. Mentuck, [2001] S.C.J. No. 73, at para 39, the Supreme Court of Canada reiterated the importance of the concept of open court: "It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban."
[23] Further, in R. v. A., [1990] 1 S.C.R. 992 at p. 993, the Supreme Court of Canada indicated that representations concerning an exclusion should be given in open Court. "After hearing argument and based on oral representations made in open court that disclosure would place in jeopardy the lives or safety of B and C, the Court granted the application. The order granting this application was made in open court as well." (My emphasis).
[24] As stated above, the evidentiary basis, if necessary, may be presented in a voir-dire but this does not displace the onus on counsel to justify, by oral representations in open court, the need for an in camera hearing. As pointed out by Mr. Schabas, counsel for the intervener, the Toronto Star, a hearing does not go in camera "simply on the say-so of counsel".
[25] In the present case no explanation was provided to the Court as to why the disclosure might put other people at risk or who may be at risk. I have to assume from reading interviews given to the media by Ms. Jackman, counsel for the respondent, that the disclosure would place in jeopardy the lives or safety of some of Mr. Almrei's associates in other countries.
[26] Further, no explanation was given to the Court as to why, for instance, facts relating to Mr. Almrei's travel and status in Canada, his interview with CSIS, should be heard in camera. Considering that they are contained in the summary provided to him, which is in the public domain, I am unable to find any reason why such information could put other individuals at risk.
[27] Furthermore, Ms. Jackman did not provide any reasons why Mr. Almrei could not testify to explain the pictures found on his computer. This explanation, however, was provided to the media outside the courtroom by counsel who stated that they were taken from articles Mr. Almrei was reading online. Surely, by speaking to the media on this subject, Ms. Jackman was satisfied that this information would not put in jeopardy the life or safety of her client's associates. Therefore testimony relating to this information need not be heard in camera.
[28] As stated earlier, in light of the lack of justification for an in camera hearing, I suggested that the testimony be heard in public and should any areas of concern arise, I would be prepared to hear arguments in camera. This procedure is similar to the approach suggested by Trafford J. in Toronto Star Newspapers Ltd. v. Ontario, [2000] O.J. No. 2398 at para. 34:
It is to be observed that a better practice, in any event, would have been to commence the hearing of the application to seal the information in open court and, if the need arose during its course, to remove the public for a brief period to permit counsel to refer to the information during submissions.
[29] The proposed manner of proceeding, however, was rejected by Mr. Almrei who elected not to testify.
IV. Reasonableness of the certificate
[30] As was the case in Al Sayegh (Re), [1997] F.C.J. No. 537, Mr. Almrei's decision not to testify constitutes a failure on his part to avail himself of his opportunity to be heard. Thus, the only evidence before me is that presented at the hearing held pursuant to paragraph 40.1(4)(a) of the Act on October 24, 2001.
[31] The confidential information, which I am unable to disclose, strongly supports the view that Mr. Almrei is a member of an international network of extremist individuals who support the Islamic extremist ideals espoused by Osama Bin Laden and that Mr. Almrei is involved in a forgery ring with international connections that produces false documents.
[32] On the basis of the evidence I heard in camera on October 24, I had no hesitation in concluding that the certificate signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada is reasonable.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
November 23, 2001.