Federal Court Decisions

 

Date: 20070511

Docket: IMM-4184-06

Citation:2007 FC 508

Ottawa, Ontario, May 11, 2007

PRESENT:     The Honourable Mr. Justice Lemieux

 

BETWEEN:

MOHAMED HARKAT

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

 

Respondents

 

REASONS FOR ORDER AND ORDER

Introduction

[1]     Mohamed Harkat (the applicant), a Convention Refugee and the subject of a deportation order which is the direct result of a finding by my colleague Madam Justice Dawson the security certificate issued against him was reasonable, seeks a stay/adjournment of the hearing of this judicial review application scheduled for May 15, 2007.  In his judicial review application, Mr. Harkat seeks to quash a decision, rendered on July 11, 2006, with an addendum signed on July 28, 2006, by Mr. James Schultz, the Minister’s Delegate, (the Delegate) who found:

“On the basis of information considered by me, I am of the opinion, pursuant to paragraph 115(2)(b) of the Immigration and Refugee Protection Act that:

                             Mohamed Harkat,

DOB: August 6, 1968

should not be allowed to remain in Canada based on danger to the security of Canada.”     

 

 

[2]     He also urges upon the Court the application of rule 399(2) of the Federal Courts Rules, 1998 for the same purpose.

 

[3]     At yesterday’s hearing of the applicant’s motion, his counsel indicated to the Court he was not seeking a permanent stay of the Delegate’s decision but rather, an adjournment sine die until Parliament has enacted its new security certificate review process as directed by the Supreme Court of Canada in Charkaoui v. Canada (Minister of Citizenship and Immigration) 2007 SCC 9.

 

[4]     By order dated February 14, 2007, the Chief Justice of this Court granted Mr. Harkat leave to judicially review the Delegate’s decision, set out various procedural steps and fixed Mr. Harkat’s application for hearing on May 15, 2007.

 

[5]     Paragraph 115(2)(b) of the Immigration and Refugee Protection Act, (the Act) is an exception to the principle of non-refoulement which stipulates a protected person such as a Convention Refugee shall not be removed from Canada to a country [in this case Algeria, the applicant’s country of birth] if he would be at risk of persecution, at risk of torture or cruel and unusual treatment or punishment.  This exception is provided for in subsection 115(2) of the Act which reads:

 

[6]     Whether a stay/adjournment of the scheduled hearing should be granted requires an in-depth consideration of the recent unanimous decision of the Supreme Court of Canada released on February 23, 2007 involving Adil Charkaoui, Mohamed Harkat and Hassan Almrei, (Charkaoui, above).  The Court’s reasons were written by the Chief Justice of Canada, who, at paragraph 139, dealing with the lawfulness of the review procedures relating to security certificates, expressed herself in the following manner:

139     The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person's rights. It follows that the IRPA's procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter. I would declare the procedure to be inconsistent with the Charter, and hence of no force or effect. [Emphasis mine]

 

[7]     The Court, however, suspended the operation of the declaration at paragraph 140:

140     However, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui's certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the "reasonable" status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process. [Emphasis mine]

 

 

[8]     I mention that of the three appellants before the Supreme Court of Canada, Mr. Charkaoui is the only one whose security certificate had not been reviewed for reasonableness. 

 

[9]     Finally, by way of introduction, Mr. Harkat was released from detention on May 23, 2006 on very strict conditions imposed by Justice Dawson and recently essentially maintained on further review at the request of the applicant by my colleague Justice Simon Noël on April 20, 2007. 

 

[10]     The Chief Justice of the Supreme Court of Canada characterized the release conditions imposed on Mr. Harkat as placing him under house arrest and continuous surveillance by the Canada Border Services Agency (CBSA), and the RCMP (see paragraph 103, Charkaoui, above).

The Delegate’s Opinion

[11]     The Delegate’s opinion in respect of Mr. Harkat was rendered one month after the Supreme Court of Canada had heard the constitutional challenge against the security certificate review process and eight months before that Court issued its judgment.  

 

[12]     Guided by the Supreme Court of Canada’s decision in Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3, the Delegate first assessed whether Mr. Harkat’s continued presence in Canada constituted a danger to the security of Canada adopting the test laid out in Suresh, above, at paragraph 90 in the following terms:

90     These considerations lead us to conclude that a person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be "serious", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. [Emphasis mine]

 

[13]     The Delegate was aware he could not simply rely on Justice Dawson’s decision of March 22, 2005, reported as 2005 F.C. 393, finding the security certificate issued against Mr. Harkat was reasonable.

 

[14]     According to the applicable jurisprudence namely Suresh, above, and Mahjoub v. Canada (Minister of Citizenship and Immigration) 2005 FC 156 and other cases, the Delegate had to undertake an independent and objective review of the evidence which had been submitted to him and arrive at an original assessment, essentially a finding of fact, Mr. Harkat was, on the balance of probabilities, a danger to the security of Canada, a determination which requires an assessment of the nature or extent of the risk Mr. Harkat poses to Canada’s security.  According to Suresh, above, the Delegate was not required to hear Mr. Harkat in person and he did not do so.  Rather, as he indicated in his decision, he reviewed the evidence which had been submitted to him and he considered the submissions made by counsel.

1. Is Mr. Harkat a danger to Canada’s security?

 

[15]     The Delegate found Mr. Harkat to be a danger to the security of Canada based on his travel, employment activities in Pakistan, his Bin Laden Network associations in Canada and abroad and his use of aliases.  He stated “in addition to other information I am not publicly able to disclose, I am of the opinion Mr. Harkat is an important member of the Bin Laden Network.”  He was of the further opinion Mr. Harkat participated in terrorist-support activities in Pakistan and in Canada prior to the curtailment of those activities by his detention.  He noted the Bin Laden Network has identified Canada as an enemy and a legitimate target.  According to him, violence is an intrinsic component of the Bin Laden Network’s ideology, in addition to being a means of achieving broader objectives. He was also of the opinion detention had not diminished his capability or motivation over time and he would re-establish links with the Bin Laden Network and participate actively in terrorist or terrorist-support activities at any point at which he believed he had the opportunity to function undetected in that capacity.

 

[16]     There is no doubt the Delegate considered voluminous public and considerable secret evidence in coming to conclusion that Mr. Harkat constitutes a danger to the security of Canada.

 

[17]     In terms of the secret evidence, the Delegate reviewed substantially all of the secret evidence that was before Justice Dawson when she reviewed the security certificate for reasonableness. 

 

[18]     Also available to the Delegate was updated secret evidence which I reviewed (as well as reviewing the secret evidence which was before Justice Dawson) when seized with Mr. Harkat’s first attempt for release from detention (see Harkat v. Canada (Minister of Citizenship and Immigration) 2005 FC 1740).  No additional, new, or other secret evidence was available to the Delegate in respect of Mr. Harkat.

 

[19]     In my judgment, the secret evidence reviewed by the Delegate was significant, material and determinative of his conclusion on Mr. Harkat’s dangerousness to the security of Canada.  It also underpins the Delegate’s determination the seriousness of his threat to Canada’s security trumps a possible deportation to torture.

 

[20]     Indeed, in the judicial review proceeding before me, counsel for the Respondents brought a section 87 application for non-disclosure.  Section 87 of the Act reads:

 

[21]     After reviewing the secret evidence referred to above, after holding an in-camera ex parte hearing with the respondents on May 7, 2007, and considering submissions yesterday at the public hearing, I am issuing an order today prohibiting the disclosure of the secret evidence referred to above which forms part of the certified tribunal record, on the grounds disclosure would be capricious to the security of Canada or of a person.

2. Is Mr. Harkat at risk if returned to Algeria? 

 

[22]     Having made his determination Mr. Harkat constituted a serious and substantial threat to the security of Canada, the Delegate then embarked upon the question of what, if any, risk Mr. Harkat may face if he is returned to Algeria and expressly to determine if he will be at risk of torture or cruel and unusual treatment if deportation results in a return to Algeria.

 

[23]     The evidence reviewed by the Delegate to assess the risk to Mr. Harkat consisted of:

• Algeria’s past human rights record, particularly, during the insurgency which began in 1988 leading to a declaration of state emergency in 1993 evidencing a climate of violence in Algeria which included detention, torture and disappearances;

 

• Current country conditions in Algeria which he found to have evolved significantly since the outset of the insurgency and the worst period of the atrocities in the mid to late 80’s.

 

• Credible human rights reporting which, according to him, “recorded improvements in respect for human rights, and reduction in reports of torture and cruel and unusual treatment for several years.”  Included in country conditions was the fact Algeria has embarked upon a concentrated effort at legislated and institutionalized national reconciliation leading, according to the Delegate to “effectively extinguishing legal proceedings against persons who were involved in terrorism-support activities and pardoned persons convicted and detained for terrorism-support activities” cautioning, however, that the terms of the amnesty did not apply to persons who actually committed massacres, rape, or attacks in public places which used explosive devices;                              

 

• Algeria’s as a current partner with various foreign counter-terrorism authorities involved in the international “war on terror” and whether Algeria might be co-opted to its allies in detaining individuals who are believed to have access to current information which would contribute in thwarting terrorist operations in foreign countries and thus increase the risk to Mr. Harkat;

 

• Factors which might mitigate risk of torture including Algeria’s legal framework, international obligations, the effectiveness of legal protection, the climate of impunity, the control of security forces; 

 

• Diplomatic assurances both at a general level and the specific diplomatic assurances given by the government of Algeria to the government of Canada in respect of Mr. Harkat; 

 

• Evidence on the treatment of returnees to Algeria believed linked to terrorism;

 

• Mr. Harkat’s personal circumstances including whether Mr. Harkat would personally be at greater risk of torture because of his linkage to the Bin Laden terrorist Network.  The Minister’s delegate concluded Mr. Harkat would be of security interest to the Algerian authorities on return based on the evidence before him particularly because of an Algerian note verbale referring to a “watch card” on Mr. Harkat as the result of his stay in Afghanistan where the note indicates he participated in the “Afghan resistance.”  In this connection, he also reviewed the evidence submitted on Mr. Harkat’s behalf from Professors Joffé and Entelis;

 

• Specifically, he weighed the diplomatic assurances specific to Mr. Harkat.  He found them wanting somewhat because noting “the Algerian response does not specifically, simply, and unequivocally state that Mr. Harkat personally would not be subject to torture or unusual treatment if returned to Algerian and remains couched in more general terms.”  However, he continued stating that “he was not persuaded that the lack of specificity in the Algerian assurances decreased their value to zero” adding “what is deficient may nonetheless retain some value.”;

 

• Factors relevant to Mr. Harkat’s circumstances which he gave most significance and the greatest weight.  They included his personal situation as an individual identified as having had GIA sympathies and association with the Bin Laden Network;

 

 

[24]     He expressed his conclusion on risk as follows:

 

“Given Mr. Harkat’s terrorist affiliations it is not certain that he will be able to benefit from amnesty provisions of the national reconciliation program eg. after an initial 12 day period of investigation and questioning.  This is possible but will depend on numerous factors which cannot be known in advance.  If he is considered a danger to Canada, he may well be found to be a danger to Algeria as well.  I believe that he faces a strong possibility of lengthy detention in uncomfortable and disagreeable circumstances consistent with local prison conditions and at least initially, a probability of aggressive interrogation short of the kind of brutality which would constitute torture.

 

But on balance I believe that improvements in Algeria’s overall security and human rights situation, diplomatic assurances received in Mr. Harkat’s case, and the international attention his case will generate operate to significantly reduce the probability of torture or cruel and unusual treatment, particularly the most serious possible consequences he might have faced at an earlier point in Algeria’s history, or in the absence of diplomatic assurances and international attention.

 

I cannot in conscience say that these factors eliminate all possibility of torture or cruel and unusual practice.  But in reducing both the probability of occurrence and the probable gravity of consequences, any serious risk to Mr. Harkat is in my opinion substantially diminished.  I therefore conclude that there is a possibility of risk to him, but that the evidence does not establish on a balance of probabilities that he will actually be subjected to torture or cruel and unusual treatment if he is returned to Algeria.” [Emphasis mine] 

 

3. Is this case so exceptional, if wrong on the risk, Mr. Harkat should be deported to torture?

[25]     Finally, the Minister’s delegate addressed an issue raised but not determined in Suresh, above, that is deportation to torture.

 

[26]     He introduced this topic by writing at page 48 under the heading “Risk and Security to Canada”:

                   “But the consequences of error for Mr. Harkat is potentially very serious

I have said already that I consider extra-judicial execution in Mr. Harkat’s case improbable, whereas lengthy detention in circumstances which do not provide him with safeguards against the possibility of torture or cruel and unusual treatment is highly likely.  But whether or not torture, or cruel and unusual treatment, will actually occur in conditions which include diplomatic assurances, improvements in Algeria’s human rights situation, and evidence that this has not occurred in all other similar cases is a judgement that can only be made on the balance of probabilities.  Risk by definition is not certainty.

 

In the event I am wrong in my conclusion that Mr. Harkat is not at substantial risk of torture or cruel and unusual treatment, I will now proceed to determine whether removal is nonetheless permissible due to the existence of exceptional circumstances by balancing the assumed risk to Mr. Harkat against the danger he poses to the security of Canada.” [Emphasis mine]         

 

[27]     In Suresh, above, at paragraphs 71 to 78, the Supreme Court of Canada discussed Canada’s rejection of torture which is reflected in the international conventions to which Canada is a party concluding that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by section 7 of the Charter and that the Minister should generally decline to deport refugee’s where on the evidence there is substantial risk of torture.  The Court then wrote paragraph 78 in Suresh, above: 

78     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] 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 [page47] 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.

                                                    

[28]   The Delegate’s conclusion exceptional circumstances had been made out in Mr. Harkat’s case was premised on the fact if he was not deported he would be unconditionally released in Canada and, being a member of the terrorist Bin Laden Network, would ultimately provide him with the opportunity to engage in acts of terrorism which would place Canadian security including the security of individual Canadians in grave danger.         

 

The Supreme Court of Canada’s Decision in Charkaoui

 

[29]     As noted, in this case, the Supreme Court of Canada declared the security certificate and detention review process in violation of section 7 of the Charter and not saved by its section 1 because section 78(g) of the Act allows the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for the non-disclosure and the constitutional problems it causes.  It was of the view from approaches adopted in other democracies and in Canada itself in other security situations solutions could be devised to protect confidential security information and at the same time are less intrusive to the person’s rights.  It discussed four possible less intrusive alternatives: (1) the now repealed Security Intelligence Review Committee, certificate review process, (SIRC) at paragraph 71; (2) the special advocate such as exists in England at paragraph 80; (3) the current legislation in Canada under the Canada Evidence Act for the review of sensitive information at paragraph 77 and (4) the use of special counsel such as was the case in the Arar Inquiry.

 

[30]      Specifically, at paragraph 3 of her reasons, the Chief Justice found the certificate review process under the Act unjustifiably violated section 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. 

 

[31]     The Chief Justice recognized, and this is important in my view, that if a security certificate is determined to be reasonable it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing and the person named in it may not apply for protection under subsection 112(1).

 

[32]     The Court also appreciated in coming to the conclusion the review procedures in place for security certificates and immediate detention on issuance for foreign nationals such as Mr. Harkat, fundamental justice had to be met taking into account the exigencies of the security context which must be recognized: full disclosure of information relied on may not be possible ( see paragraph 24).

 

[33]     At paragraph 58 of her reasons, the Chief Justice of Canada cited several cases including Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1 S.C.R. 711 where it found SIRC could, in investigating certificates under the former Immigration Act, refuse to disclose details of investigation techniques and police sources.  Likewise, in Suresh, above, the Supreme Court determined a refugee facing possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, “subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents”, (see paragraph 122).

 

[34]     The focus of the Chief Justice’s reasons was on the relevant principles of fundamental justice.  She was satisfied two requirements were clearly met: the right to a hearing and the hearing be before an independent and impartial magistrate, i.e., a designated judge of this Court. 

 

[35]     She identified as paragraph 31 of her reasons other requirements of fundamental justice, namely, the judge must make a judicial decision based on the facts and the law and the named person be afforded an opportunity to meet the case put against him or her by being informed of that case and being allowed to question and counter it.  It is with respect to these two last requirements the Chief Justice found infringement of section 7 of the Charter. 

 

[36]     As to the requirement the decision be based on the facts and the law the Chief Justice found the requirements were not met because the named person may be shown little or none of the material relied on by the Ministers and the judge and may not be in a position to know or challenge the case against him or her concluding “It follows that the judge’s decision while based on the evidence before him or her, may not be based on all of the evidence available.” [Emphasis mine]

 

[37]     She identified two types of judicial systems that ensure the full case is placed before the judge.  She mentioned the inquisitorial system where the judge takes charge of the gathering of evidence in an independent and impartial way in contrast to the adversarial system which relies on the parties who are entitled to disclosure of the case to meet and the full participation in open proceedings to produce the relevant evidence.  She concluded the designated judge under the Act does not possess the full and independent powers to gather evidence that exists in the inquisitorial process and at the same time the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process.  She concluded, at paragraph 50, “the result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged – perhaps unknowingly- to make the required decision based on only part of the relevant evidence.  [Emphasis mine]

 

[38]     Because the judge is not afforded power to independently investigate all relevant facts that the true inquisitorial judges enjoy and since the named person is not given a full picture of the case to meet, the judge cannot rely on the parties to present missing evidence concluding at paragraph 51, “the result is that, at the end of the day, one cannot be sure that the judge has been exposed to the whole factual picture.” [Emphasis mine]

 

[39]     At paragraph 52, she then expressed similar concerns which arise with respect to the requirement that the decision be based on the law.  She wrote:

“Similar concerns arise with respect to the requirement that the decision be based on the law. Without knowledge of the information put against him or her, the named person may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. The named person is, to be sure, permitted to make legal representations. But without disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument. [Emphasis mine]

 

[40]     The Chief Justice, in her reasons, then discussed whether the “case to meet” principle was satisfied stating at paragraph 53 “last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case” and at paragraph 54 she reiterated under the certificate scheme, “the named person may be deprived of access to some or all of the information put against him or her which would deny the person the ability to know the case to meet.”  She added “without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants and refute false allegations” stating “the problem is serious in itself.” [Emphasis mine]             

 

[41]     She recognized at paragraph 57 “the right to know the case to be met is not absolute” and identified Canadian statutes which provide ex parte or in-camera hearings in which judges must decide important issues after hearing only one side.  She referred to a recent decision of the Supreme Court of Canada in R. v. Rodgers, [2006] 1 S.C.R. 554, writing “the majority of this Court declined to recognize notice and participation as invariable constitutional norms, emphasising a context-sensitive approach to procedural fairness.”  At paragraph 59, she identified in some context, substitutes for full disclosure may permit compliance with section 7 of the Charter citing Chiarelli, above, where the Court upheld the lack of disclosure on the basis that the information disclosed by way of summary and the opportunity to call witnesses and cross examine RCMP witnesses who testified in-camera satisfied the requirement of fundamental justice.  In the next paragraph she noted “where limited disclosure or ex parte hearing have been found to satisfy the principles of fundamental justice, the intrusion on liberty and security has typically been less serious than that effected by the IRPA.”  She wrote “It is one thing to deprive a person of full information where finger printing is at stake, and quite another to deny him or her information where the consequences are removal from the county or indefinite detention.”  Moreover, even in the less intrusive situations, Courts have insisted that disclosure be as specific and complete as possible. 

[Emphasis mine]                             

 

[42]     She added the following at paragraph 61 of her reasons:

“In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.” [Emphasis mine]

 

[43]     At paragraph 63 of her reasons, she expressed the view the designated judge working under the constraints imposed by the Act “simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing.”  After discussing a number of problems arising from the constraints of the Act, the Chief Justice concluded the judge is placed in the situation of deciding the issues on the basis of incomplete and potentially unreliable information.  [Emphasis mine]

 

[44]     She concluded on the principle of the case to meet that the principle has not merely been limited in the case of IRPA: “It has been effectively gutted.  How can one meet a case one does not know”, (see paragraph 64). [Emphasis mine]

The Stay/Adjournment Motion

(1) The Position of the Parties

(a) The Applicant

 

[45]     Mr. Harkat’s counsel raises three essential points in favour of the adjournment/stay of the judicial review hearing in respect of the Delegate’s opinion.

 

[46]     First, he argues the Delegate relied upon the secret evidence tendered to Justice Dawson when she reviewed the reasonableness of the security certificate issued against Mr. Harkat coupled with the Delegate’s reliance also on the updated secret evidence before me tendered during the first release attempt by Mr. Harkat.      

 

[47]     Second, he argues the evidentiary record in respect of Mr. Harkat before the Delegate was found deficient in the security certificate review process prescribed under the Act and in violation of section 7 of the Charter by the Supreme Court of Canada in Charkaoui, above.  It has been noted the Delegate’s decision was rendered before the Supreme Court of Canada’s February, 2007 decision.  Counsel for Mr. Harkat argues the Delegate’s decision in July, 2006 cannot serve as a foundation for his danger opinion and his danger/risk balancing to conclude exceptional circumstances.  

 

[48]     Third, he reviewed a number of cases where the Supreme Court of Canada had suspended a declaration of invalidity arguing the suspension in Mr. Harkat’s case was for a limited purpose and its underlying impact of invalidity did not justify the federal government continuing to seek Mr. Harkat’s removal from Canada. 

(2)  The Ministers’ Position

[49]     Counsel for the Ministers argued in favour of proceeding with the judicial review application which, as noted in Suresh, above, is the final step in Mr. Harkat’s deportation process.  His position is as follows.

 

[50]     First, he argues Charkaoui, above, was a case dealing with the security certificate review process which cannot be conflated with the case now before this Court – a judicial review application in respect of the Delegate’s opinion Mr. Harkat constitutes a danger to the security of Canada and should not be allowed to remain in Canada.

 

[51]     Second, he argues Suresh, above, is determinative because that case was a danger opinion case and the Supreme Court of Canada established the parameters of procedural fairness applicable in such circumstances: no right to an oral hearing and protection of secret evidence with a high deferential standard of review, namely, patent unreasonableness where the test is whether the Delegate’s opinion was made arbitrarily or in bad faith, cannot be supported on the evidence, or the Minister failed to consider the appropriate factors.  The Supreme Court of Canada warned that on judicial review of the Delegate’s opinion, the Court should not re-weigh the factors or interfere merely because it would have come to a different conclusion.

 

[52]     Third, he argued that it cannot reasonably be said the evidentiary record before the Delegate is deficient in this case noting the holding in Suresh, above, confidential security documents did not need to be disclosed to the person affected by Delegate’s decision.  He argues Mr. Harkat has sufficient information to comply with the principles of fundamental justice applicable in an administrative tribunal setting and he has sufficient information to argue the Delegate’s decision should be set aside on the basis that he erred in law based on the factors enumerated in section 18.1 of the Federal Court Act.  In this respect, he draws a distinction between the security review process and a determination that a person constitutes a danger to the security of Canada.         

 

[53]     Finally, he argues Mr. Harkat has made out none of the three-part test for the grant of a stay/adjournment, namely, serious issue, irreparable harm and balance of convenience. 

Analysis

[54]     In my view, the applicant’s motion can be resolved by considering whether the applicant has made out the test for a stay/adjournment which will be considered on the basis of the tripartite test set out by the Supreme Court of Canada in RJR McDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311.  I need not deal with whether Rule 399 (2) would provide the applicant the same relief.        

 

[55]     The tri-partite test set out in RJR-MacDonald Inc., above, is well-known namely: (1) the existence of a serious issue to be tried, (2) the showing of irreparable harm and (3) the determination of the balance of convenience.  The applicant must make out each of the three elements in order to obtain an injunction.     

 

[56]     I would apply the RJR-MacDonald test because what Mr. Harkat is effectively seeking is a stay of his removal from Canada for some time and this Court’s order is tantamount to a stay of his removal for that time. 

 

[57]     I stress the limited purpose of the motion before me.  Mr. Harkat does not seek to render the Delegate’s decision devoid of any substance.  The Delegate’s decision will still have some life if this stay motion is granted.  The purpose of his stay motion is to delay the judicial review hearing of the Delegate’s decision that Mr. Harkat is a danger to the security of Canada and should not be allowed to remain in this country.  As mentioned, the delay sought is until Parliament has put into place a new security certificate review process which would conform to the Supreme Court of Canada’s decision in Charkaoui, above.  I set out the following factors which form the matrix surrounding my decision on this motion.  

      

[58]     First, as set out in Suresh, above, the Delegate’s opinion is the last stage required to effect Mr. Harkat’s deportation from Canada.  The consequences for him are very serious.  On the other hand, the findings made against him are equally serious because it has been found by the Delegate he is an important member of a terrorist organization.  In an appeal in which Mr. Harkat participated to challenge the constitutionality of the security certificate review process provided for under the Act the Supreme Court of Canada found that process wanting because of the reliance placed on secret evidence considered by a designated judge of this Court in ex parte in-camera hearing without the presence of an independent agent to better protect Mr. Harkat’s interest did infringe the principles of fundamental justice in the ways described above.  I agree, however, with counsel for the Ministers the Supreme Court of Canada focused on the manner in which the evidence-gathering process took place and was assessed under the impugned provisions of the Act.  As such, the Court was not required to review the secret evidence.  Such was also the case in Suresh, above, (see paragraph 27).                                   

 

[59]     Second, nevertheless, according to the Supreme Court of Canada, the manner in which the evidence was gathered and assessed in Mr. Harkat’s case as well as in the case of the two other appellants contained serious flaws which affected fact-finding.  The following defects were identified: all of the available evidence may not have been before the designated judge and only part of the relevant evidence may have been before him/her such that at the end of the day “one cannot be sure that judge has been exposed to the whole factual picture.”  In addition, without disclosure and full participation, the Supreme Court of Canada held Mr. Harkat may not have been in a position to put forward a full legal argument.  As important was his ability to know the case to meet which may have been such that he was not in a position “to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations.”  A further consequence is if Mr. Harkat did not know the case to meet this may have affected the judge’s assessment the information before him or she is sufficient or reliable, thus placing the judge in a position of deciding issues on the basis of incomplete and potentially unreliable information.                           

      

[60]     Third, there is no question the Delegate relied upon substantial secret evidence gathered and assessed through the security certificate review process which the Supreme Court found violated his section 7 Charter rights. That secret evidence was material and determinative in the Delegate’s fact-finding.  It is clear from paragraph 31 of Suresh, above, the Delegate’s inquiry as to whether Mr. Harkat is a danger to the security of Canada is “highly fact-based and contextual.”  The bottom line is that the decision of the Supreme Court of Canada materially impugned the fact-finding process utilized in reviewing the reasonableness of security certificates. This is why that Court essentially ordered a new trial for Mr. Harkat and Mr. Almeri.  It is clear that the Delegate arrived at his fact-finding based on a flawed gathering and assessment process according to the Supreme Court of Canada.         

 

[61]     Fourth, the Supreme Court of Canada, while suspending the declaration of invalidity of certain portions of the Act, did provide Mr. Harkat and others a remedy for the violation of his Charter rights. As stated above, when paragraph 140 of the Chief Justice’s reasons in Charkaoui, above, are read as a whole the essential remedy provided by it was to order, as stated above, a new security certificate review for Mr. Harkat.  It is useful, at this juncture, to reproduce once again paragraph 140 of Charkaoui, above.       

140     However, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui's certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the "reasonable" status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.

 

[62]     As seen, Parliament is to put into place a new security certificate review process in terms of fact-finding which will better protect his rights while at the same time recognizing the necessity of protecting evidence the disclosure of which would be injurious to the security of Canada or any person.  It stated, after one year, the security certificate against him which was found reasonable would lose the “reasonable” status that had been conferred upon it and that it would be open to Mr. Harkat to apply to have the security certificate quashed.  This means that on February 24, 2008, the Ministers will have no authority to remove Mr. Harkat under the existing certificate because the existence of the reasonableness of that certificate is necessary for it to continue to be a removal order.  Finally, the Supreme Court of Canada stated, “If the government intended to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament” in order to better protect Mr. Harkat’s rights.               

 

[63]     Finally, I do not accept counsel for the Minister’s submission the Ministers must make efforts now to deport Mr. Harkat because failing to do so would affect the ability of the government to detain Mr. Harkat or maintain his release on strict conditions of his release.  In my view, Mr. Harkat’s detention is lawful during the one-year suspension because the validity of the security certificate issued against Mr. Harkat upon which his lawful detention is based is not affected (see section 82(2) of the Act).  Moreover, the Supreme Court of Canada in Charkaoui, above, at paragraph 123 concluded “that extended periods of detention pending deportation under the certificate provisions of the Act do not violate sections 7 or 12 of the Charter provided that reviewing Courts adhere to the guidelines set out above for detention reviews.”  After the one-year period the certificate will still need to be quashed if it is to lose its value as an instrument justifying detention.  The Supreme Court of Canada has given time for Parliament to react during the period of suspension.  In the meantime, Mr. Harkat has been released from detention on strick terms which if one is breached will lead to his automatic re-arrest, see, Charkaoui, above, at paragraph 103.  Madam Justice Dawson and Mr. Justice Noël, in fashioning and maintaining conditions of his release were satisfied such conditions were proportional to the risk Mr. Harkat posed to the security of Canada and had the effect of neutralizing that risk.                              

 

Conclusion

 

[64]     The grant of the interim stay requested by Mr. Harkat is a discretionary decision which must be made on the application of proper principles.  In this case, as mentioned, the test set out in RJR-MacDonald is appropriate.  For the reasons set out below, I have concluded Mr. Harkat has made out the three conditions required to obtain a stay.           

 

(a) Serious Issue

 

[65]     I am satisfied the applicant has raised one or more serious issues in the context of this stay motion.  One such question is the scope of the remedy accorded to Mr. Harkat by the Supreme Court of Canada as a result of his successful appeal and the effect of its suspension of invalidity for one year.         

 

[66]     Formulated in a different way, the question posed is whether there is any purpose for this Court to embark upon a judicial review of the Delegate’s opinion when the factual foundation for his critical fact-based findings were the direct result of a flawed evidentiary gathering and assessment process during the security certificate review exercise.  In my view, the determination of these questions are serious.

(b) Irreparable Harm              

 

[67]     The applicant has satisfied me he would suffer irreparable harm if the stay is not granted.  A central question in this judicial review application is whether the evidentiary basis which was before the Delegate provides a non-arbitrary or non-capricious support for his opinion.  That review, if not stayed, would necessarily proceed on the evidence determined by the Supreme Court of Canada to have been gathered and assessed in a flawed manner.  Such an assessment would proceed to take place as if the highest court in Canada had not found his Charter rights had been infringed.  Such an assessment would proceed on the basis which would ignore the fact the Supreme Court of Canada provided Mr. Harkat a remedy-the equivalent of a new security certificate review under a new process defined by Parliament which would better protect his Charter rights.

 

[68]     At worst, and counsel for the Ministers did not seriously challenge this proposition, if Mr. Harkat was deported to Algeria within the one-year suspension period, the relief provided by the Supreme Court of Canada to remedy the violation of his Charter rights would be nugatory.

 

(c) Balance of Convenience                                         

 

[69]     The balance of convenience test is a determination of which of the two parties will suffer the greater harm from the grant or refusal of an interlocutory injunction, pending a decision on the merits. 

 

[70]     I find the balance of convenience favours the applicant.  I have found Mr. Harkat would suffer irreparable harm if the stay is not granted.  I can find no countervailing reason why this judicial review should proceed now.            

 

[71]     I find no merit in counsel for the Ministers’ suggestion the Court should now proceed to determine some of the questions the applicant raised in his leave application, such as whether the Delegate applied the appropriate standard of proof to assess his risk of torture or cruel and unusual treatment if returned to Algeria. 

 

[72]      I do not see any purpose of embarking upon such a limited review at this stage as it would unnecessarily truncate the review process and waste scarce judicial and other resources.  I conclude that it is best that all issues raised by the applicant in respect of the Delegate’s decision be determined at the same time on a more solid factual foundation as directed by the Supreme Court of Canada.                  

                                                                                    

ORDER

THIS COURT ORDERS THAT: This judicial review proceeding is stayed sine die until after the enactment by Parliament of a new security certificate review process.  The applicant did not request costs of this motion.

 

“François Lemieux”

 

 

 

 

 

 

FEDERAL COURT

NAME OF COUNSEL & SOLICITORS OF RECORD

 

DOCKET:                                                      IMM-4184-06

 

STYLE OF CAUSE:                                      Mohamed Harkat

v.

The Minister of Citizenship and Immigration & The Minister of Public Safety and Emergency Preparedness

 

PLACE OF HEARING:                                Ottawa, Ontario

 

DATE OF HEARING:                                  May 10, 2007

 

REASONS FOR ORDER

AND ORDER:                                               LEMIEUX, J.

 

DATED:                                                          May 11, 2007

 

APPEARANCES:

 

Mr. Paul D. Copeland

Mr. Matthew Webber                                      For the Applicant

 

Donald A. MacIntosh

David Tyndale                                                  For the Respondents

 

SOLICITORS OF RECORD:

 

Matthew Webber                                             For the Applicant

Webber, Schroeder

Barristers & Solicitors

220 Elgin Street, 2^nd Floor

Ottawa, ON K2P 1L7

Tel: (613) 860-1449

 

Paul D. Copeland                                             For the Applicant

Copeland, Duncan

Barristers & Solicitors

31 Prince Arthur Avenue

Toronto, ON M5R 1B2

Tel: (613) 964-8126, Ext. 142

 

John H. Sims, Q.C.                                                      For the Respondents

Deputy Attorney General of Canada