Date: 20011123
Docket: IMM-5285-01
Neutral citation: 2001 FCT 1392
BETWEEN:
HESHAM KHALED NABUT
(Applicant)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
Delivered orally by teleconference on November 23, 2001
SIMPSON, J.
Introduction
[1] In this application for a stay of a deportation order, counsel were asked to begin their submissions with the issue of irreparable harm. I heard their submissions on November 21, 2001 and ordered an interim stay until noon on November 23, 2001 to allow time for reflection and the preparation of these reasons.
Background
[2] The applicant has dual citizenship. He is a citizen of both Jordan and the United States of America (the "USA"). During his most recent stay in Jordan, he learned that he had been named in an indictment which had been issued in the USA (the "Indictment"). It includes six counts against him relating to the drugs pseudoephedrine and methamphetamine. These are controlled substances under Canada's Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[3] The applicant left Jordan and arrived in Canada in May of 2001. He was interviewed and arrested here on July 16, 2001. Thereafter, he was placed in detention at the Millbrook Correctional Centre. After a hearing, at which the applicant testified that he was innocent of the charges in the Indictment, an adjudicator nevertheless concluded that he was criminally inadmissible to Canada by reason of section 19(1)(c.1)(ii) of the Immigration Act, R.S.C. 1985, c. I-2. A Deportation Order was therefore made on November 20, 2001 and it was decided that he would be removed to the USA on November 22, 2001.
Irreparable Harm
[4] While the applicant was in detention, and before the terrorist attacks in the USA of September 11, 2001 (the "Terrorist Attacks"), the RCMP interviewed the applicant because he is apparently known to associate with individuals whom the RCMP believes to be terrorists. However, it has not been alleged that the applicant himself is a terrorist. After the Terrorist Attacks, he was interviewed again. This time, the RCMP questioned him at the request of the USA's Federal Bureau of Investigation (the "FBI").
[5] The applicant has been advised that, on his return to the USA, he will be arrested and held without bail. The Indictment names many others and, with one exception, none of the accused have been granted bail. The exception, who made bail, subsequently disappeared.
[6] Counsel for the respondent suggested that decisions about bail are made by the courts and not by the police and prosecutors. For this reason, he said that it was mere speculation for the applicant to suggest that he would be denied bail. However, I have decided that it is realistic to approach this application on the basis that the applicant is likely to be denied bail.
[7] The issue, therefore, is whether the applicant, who has known associates who are believed to be terrorists and who is under indictment, faces irreparable harm on his deportation to the USA. The harm is said to flow from the long pretrial incarceration of a man who says he is innocent of all charges, and the extensive questioning and lack of due process which will inevitably result from the FBI's knowledge of his terrorist associations.
[8] The applicant acknowledges that the USA has a respected legal system and is mindful of the Federal Court of Appeal's decision in Canada (Minister of Employment and Immigration) v. Satiacum, [1989] F.C.J. No. 505. In that case, the Court said that Canadian Tribunals must assume that a fair and independent judicial process exists in a foreign country. But the applicant says that, in spite of his American citizenship, his Arab heritage and his alleged terrorist associates place him in a unique situation in which there is reason to believe that (i) his human rights may not be respected during a long period of pretrial incarceration and that (ii) he ultimately may not receive a fair trial.
Conclusions
[9] In my view, denial of bail, even to an accused who says he is innocent, is not irreparable harm. Neither is it irreparable harm to be subjected to questioning in the course of an investigation of the Terrorist Attacks. On the other hand, it would be naive to underestimate the anger Americans feel as a result of the Terrorist Attacks. It may well be that the applicant will require protective custody pending trial. However, the USA's system of justice has the ability to provide inmates with special care in appropriate circumstances. Finally, in spite of this applicant's special profile, I am prepared to assume that he will receive due process and a fair trial in the USA.
ORDER
In the absence of irreparable harm, this application for a stay is hereby dismissed.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
November 23, 2001