Date: 19980323
Docket: DES-3-95
| IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") |
| AND IN THE MATTER OF an application for release from detention pursuant to paragraph 40.1 (8) of the Act; |
IN RELATION TO:
MANICKAVASAGAM SURESH
Let the attached reasons, which are an edited version of those delivered orally from the Bench at Toronto, Ontario on March 19, 1998, be filed to comply with section 51 of the Federal Court Act.
"Max M. Teitelbaum"
Judge
March 20, 1998
Court File No. DES-3-95
FEDERAL COURT OF CANADA
(TRIAL DIVISION)
| IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act R.S.C. 1985, c. 1-2, (the "Act") |
| AND IN THE MATTER OF an application for release from detention pursuant to paragraph 40.1 (8) of the Act; |
| IN RELATION TO: |
MANICKAVASAGAM SURESH
Held before the honourable Mr. Justice Teitelbaum of the Federal Court of Canada, 330 University Avenue, Toronto, Ontario in Courtroom 7, on the 19th day of March, 1998.
APPEARANCES:
| MS. B. JACKMAN for Mr. Suresh |
| MR. N. VAILLANCOURT, Esq. for the Minister of Citizenship and Immigration |
Mr. M. Sepe - Registrar
| DECISION BY HIS LORDSHIP: 3 |
TABLE OF CONTENTS
INDEX OF EXAMINATIONS:
| DECISION BY HIS LORDSHIP: 3 |
Commencing at 2:30 p.m. in Courtroom 7
HIS LORDSHIP: Good afternoon.
MS. JACKMAN: Good afternoon, my lord.
MR. VAILLANCOURT: Good afternoon.
HIS LORDSHIP: Mr. Vaillancourt, do I understand that as of this moment no application has been made to Mr. Justice Lane to vary his order?
MR. VAILLANCOURT: That is correct, my lord.
HIS LORDSHIP: In that case, I am ready to give you my decision with regard to the application, in summary form. More detailed reasons will, in all likelihood, be issued at a later date.
DECISION BY HIS LORDSHIP:
A certificate based on the security intelligence report prepared by the Canadian Security Intelligence Service indicating that Mr. Suresh is inadmissible under section 19.1E.4C, 19.1F.ii, and 19.1F.iii.B of the Immigration Act was signed by the Solicitor General of Canada on August the 1st, 1995, and by the Minister of Citizenship and Immigration on September the 11th, 1995.
The Ministerial certificate issued alleged Mr. Suresh as being inadmissible to Canada because he fell within the category of persons described in subparagraphs 19.1E.4C, 19.1F.ii, and 19.1F.iii.B of the Act.
I upheld the reasonableness of the Ministerial certificate. On August the 29th, 1997, I determined that reasonable grounds existed for the Solicitor General and the Minister of Citizenship and Immigration to have issued a certificate pursuant to section 40.1 of the Act. I was satisfied, based on all of the evidence, that there were reasonable grounds to believe that Mr. Suresh was and is a member of the LTTE. I agreed with the Crown's submissions that Suresh had been a dedicated and trusted member in a leadership position with the LTTE.
I also found that Suresh at the request of the LTTE travelled to Canada to head the World Tamil Movement, which can be reasonably be concluded is part of the LTTE organization, or is at the very least an organization that normally supports the activities of the LTTE.
I was also satisfied that there were reasonable grounds to believe that the LTTE had committed terrorist acts.
Pursuant to paragraph 40.1 of the Immigration Act, Suresh was arrested on October the 18th, 1995, and has remained incarcerated ever since.
To the present date, the Respondents have failed to remove Suresh from Canada. Suresh is still in detention. On December the 23rd, 1997, Suresh filed an application for an order releasing Suresh from detention pursuant to subsection 40.1.8 of the Immigration Act. The Applicant was ordered removed from Canada on September the 17th, 1997, but as yet has not been removed from Canada, and this is because of an injunction issued by Mr. Justice Lane of the Ontario General Court preventing Suresh's removal from Canada for the immediate future.
I am also satisfied that Suresh will not be removed from Canada within a reasonable period of time for reasons that will be more fully stated when I issue a more detailed decision.
I am also satisfied from the evidence made before me in the in camera hearing and in the public hearing that with strict conditions Suresh's release, until his removal from Canada, would not be injurious to national security, or to the safety of persons as these terms are defined by section 2 of the Canadian Security and Intelligence Service Act.
The terms and conditions of Mr. Suresh's release are the following:
After almost 60 days of hearings relating to the issue of the issuance of the certificate, pursuant to section 40.1 of the Immigration Act, I determined (amongst other matters) that Mr. Suresh lacked total credibility. This became very evident when one would examine the documents signed by Suresh to obtain his refugee status. Virtually nothing that he wrote was true.
This being the case, I have doubts that Mr. Suresh would voluntarily report to be removed from Canada; especially, if he were to be removed to Sri Lanka where arrangements have been made by the Government of Canada to remove him. In order to ensure that he does report for removal, I am satisfied that a substantial (substantial for his friends, that is) sum of money must be deposited with the Respondent and which money is to be forfeited to the Government of Canada in the event that Suresh fails, for whatever reason, to report when requested to do so.
Suresh, or persons for and on his behalf but not directly or indirectly by the LTTE, shall deposit with the Respondent a sum of $40,000 cash, and which sum shall remain with the Respondent for the Government of Canada until such time as the Government of Canada removes Suresh from Canada, at which time the money, with interest, shall be returned to the person or persons who have deposited the said monies.
Furthermore, a performance bond in the sum of $150,000 shall be deposited by Xavier Noble Arasaratnam (the spelling of which, Miss Jackman, you will give me) for the benefit of the Government of Canada. In order to ensure that this sum is paid, in the event of Suresh failing to abide by all of the terms and conditions of his release, Mr. Arasaratnam shall give as security the home where he resides to the Government of Canada and in which he states he has an equity of $250,000.
Suresh, while out of detention, shall report once per week to the Immigration Reporting Centre at 60 Richmond Street East, Toronto, Ontario on a day and at a time as determined by the representative of the Respondent.
Suresh shall reside at the residence of Xavier Noble Arasaratnam, at 6136 Silken Laumann Way, Mississauga, Ontario, L5V 182. In the event that Mr. Arasaratnam should, for whatever reason, change his address Suresh must advise the CIC in advance and obtain the Respondent's permission to change his residence. This does not preclude occasional overnight visits with Ramalashmy Jayavaman Sivasway at 5 Greystone Wall, Apartment 1711.
Suresh, during the time of his release, shall keep the peace and be of good behaviour.
Suresh shall remain within 50 kilometres of the Toronto City limits and cannot go outside this area without permission of the CIC.
Suresh shall not have direct or indirect, expect through Miss Jackman, or Miss Jackman's employees (her secretary, paralegal, or articling student) and this solely for the preparation of court proceedings, or in an effort to locate a third country with any executive members of the WTM, or with any of the WTM's employees, and affiliated groups, such as WTA Montreal, ETA B.C. Vancouver, WTCC Ottawa, the executives and employees of FACT or PESC and is not to visit for any reason the offices of these organizations.
Suresh shall have no direct or indirect contact, except through his solicitor, with LTTE members, officials, executives, representatives, spokespersons, or co-ordinators, including individuals in any way linked to the LTTE offices outside Canada; as, for example, the Tamil Information Centre in London, England, LTTE's International Secretariat in London, England, or Paris, France, or in any other country.
Suresh shall not be involved directly or indirectly in any activities, including protests, demonstrations, or rallies of any kind or for any cause related or not related to the LTTE, WTM, WTA Montreal, ETA B.C. Vancouver, and WTCC Ottawa.
Suresh shall surrender to Canadian
Immigration authorities his passport and all other travel
"M.M.T."
documents while out of detention.
If Suresh agrees in writing to abide by these terms and conditions while out of detention then he is to be released from detention.
I shall sign an order to release Suresh from detention upon completion of the conditions herein stated. These include, of course, the deposits of the money and the giving of the security of the property.
I have a copy of the terms and conditions, but maybe not in the exact same wording as I have just given it to you. I wanted Miss Jackman to have it particularly, and to you, Mr. Vaillancourt, so that you can start immediately, if you wish, to get these conditions fulfilled.
I might add that another reason why I have
decided to allow Mr. Suresh out of detention is that
notwithstanding the fact that I found that there were
reasonable grounds to find that the LTTE was a terrorist
organization, but there was no evidence of any physical
terrorist acts have taken place by the LTTE in Canada.
What I am trying to say is that there was no evidence made
"M.M.T."
before me of the LTTE causing injury or damage in Canada.
I felt that it was reasonable to allow Mr. Suresh out of
detention but under strict conditions.
MS. JACKMAN: My lord, may I just raise two issues in terms of the order? Could you reword the surrender passports and travel documents to maybe say if there are any in existence, because he doesn't have any. I just don't want them to keep him in gaol because he can't produce something that he doesn't have.
HIS LORDSHIP: On the fact of you telling me that he doesn't have any travel documents, then he does not have to surrender any and this is now being taken down by the court reporter. Do you have anything to comment on that, Mr. Vaillancourt?
MR. VAILLANCOURT: No, my lord.
MS. JACKMAN: The only other concern is that the deposit of $40,000 and you said until he is removed from Canada. That means that you are assuming that he will not be successful. If he happens to be successful then the court may ---
HIS LORDSHIP: Then all you have to do is make an application to get the money back. If he is successful and given permission to remain legally in Canada, then all you do is make on his behalf an application and of course it will come to me. I will ---
MS. JACKMAN: Right, and you will order it to be. I just wanted that clear.
HIS LORDSHIP: If he gets legal permission to remain in Canada.
MS. JACKMAN: Yes, obviously. I have some hope.
HIS LORDSHIP: Do you have a copy of these conditions?
MS. JACKMAN: Yes, my lord.
MR. VAILLANCOURT: No, and I would certainly like a copy.
HIS LORDSHIP: Any other questions?
MS. JACKMAN: Just about him agreeing, should I have these terms and conditions copy them out and have him sign that he agrees?
HIS LORDSHIP: I think that when we get the official transcript then I will look it over and see if it is exact. I may make some small changes, and then you can get a copy of that. You can bring it in and say "I accept" or the alternative ---
MS. JACKMAN: Okay, that's fine, thank you.
HIS LORDSHIP: Mr. Vaillancourt, do you have any questions?
MR. VAILLANCOURT: No, my lord.
HIS LORDSHIP: Thank you.
--- adjourned 2:50
Certified Correct: Moira Freshwater, Reporter
| These are my reasons with regard to the applicant's application for release from detention pursuant to Sec. 40.1(8) of the Immigration Act. |
"Max M. Teitelbaum"
Judge
FEDERAL COURT OF CANADA
Date: 19980320
Docket: DES-3-95
BETWEEN:
IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act")
AND IN THE MATTER OF an application for release from detention pursuant to paragraph 40.1 (8) of the Act;
IN RELATION TO:
MANICKAVASAGAM SURESH
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: DES-3-95
| STYLE OF CAUSE: IN THE MATTER OF a certificate issued pursuant to section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2, (the "Act") |
| AND IN THE MATTER OF an application for release from detention pursuant to paragraph 40.1 (8) of the Act; |
IN RELATION TO:
MANICKAVASAGAM SURESH
DATE OF HEARING: MARCH 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: MARCH 20, 1998
APPEARANCES: Ms. Barbara Jackman
For Manickavasagam Suresh
Mr. Normand Vaillancourt
| For the Minister of Citizenship and Immigration and the Solicitor General of Canada |
Page 2
SOLICITORS OF RECORD: Ms. Barbara Jackman
Jackman, Waldman and Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M6E 3K5
For Manickavasagam Suresh
Mr. George Thomson
Deputy Attorney General
of Canada
| For the Minister of Citizenship and Immigration and the Solicitor General of Canada |