Volume 7, Issue 7 July 2011

“Qui bene interrogat bene docet” “He who questions well teaches well”

Editors-in-chief: Cecil L. Rotenberg Q.C. and Mario D. Bellissimo C.S. Inadmissibility Inside * Certificates Focus—Security Certificates David Matas and Issues (Part One of Two) ••Inadmissibility Certificates...... 1 Part Two of this article will appear in the August issue of ImmQuest — David Matas (7-8). I. The Cases...... 1 Of all the elements in the Canadian fight against terrorism, the II. The 2002 changes ...... 2 most controversial, bar none, has been the use of certificates III. Four laws ...... 2 under the Immigration and Refugee Protection Act. The certifi- A. Secrecy cate procedure is directed only against non-citizens in order to i) Two procedures ...... 2 remove them from Canada. The procedure has resulted in the ii) Review by the Security Intelligence Review Committee...... 5 prolonged detention of a number of people on secret evidence. iii) Disclosure...... 5 A certificate is issued by two Ministers jointly, the Minister of iv) Interrogatories ...... 6 v) An appeal ...... 6 Citizenship and Immigration and the Minister of Public Safety B. Detention and Emergency Preparedness. A certificate is issued where the i) Detention review ...... 7 Ministers have formed the opinion that an individual is inadmis- ii) Indeterminate detention...... 8 sible on grounds of security, violating human or international iii) The UK example ...... 10 rights serious criminality or organized criminality. The legisla- ••Case Tracker: Cases You tion requires the Ministers to refer any such certificate to the Should Know!...... 11 Federal Court for a ruling on whether the determination by the — Mario D. Bellissimo, C.S. Ministers on admissibility is reasonable. I. The Cases In recent years, there have been six certificates which have attracted widespread attention. One was against Ernst Zundel, * David Matas presented an earlier version of this article to the Canadian Bar Association Program, “National 2011 Citizenship and Immigration Law Conference”, May 12-14, 2011, Hilton Lac-Leamy, Gatineau, Quebec. Full Story on page 1 ImmQuest VOLUME-7 ISSUE-7 detention began under the post September 11 changes was Inadmissibility Harkat. Nonetheless, the use of certificate procedure, once it is justified by September 11, requires a closer look as part of the Certificates review of the post September 11 measures. continued from page 1 Moreover, even though there was an old procedure associated with certificates under the old Act, that old procedure is sig- detained under a certificate in May 2003 and deported to nificantly different from the procedure enacted as part of the Germany in March 2005. Immigration and Refugee Protection Act, which came into effect Two certificates were issued prior to September 11, 2001. One June 28, 2002. of these was against Mohammad Mahjoub of Egypt, subject to a Immediately after September 11, what became the 2002 legisla- certificate in June 2000. The other was against Mahmoud Jaballah tion was still before Parliament in the form of Bill C-11. Then of Egypt, issued in August 2001. The Federal Court ordered the Minister of Citizenship and Immigration, Elinor Caplan, urged release of Jaballah in April 2007 and Mahjoub in November 2009 the enactment of Bill C-11 because of September 11, as a means subject to terms and conditions. of responding to the post-9/11-enhanced terrorist threat. Of the three issued since September 11, one, Adil Charkaoui of Morocco, was in detention from May 2003 to February 2005. III. Four Laws Hassan Almrei of Syria was detained October 2001 and ordered Though the certificate is criticised as one law, or legal procedure, released, subject to conditions, in January 2009. Mohamed it is, in fact, three sets of laws, each with its own procedure: one Harkat of Algeria was detained in December 2002 and ordered is the law on secrecy; the second is the law on detention; and the release subject to conditions in May 2006. third is the law on return to torture. The case of Ernst Zundel is different from the others, not just In addition, there is a fourth law in the wings – the criminal because of his religion. The five from Egypt, Syria, Morocco law. A certificate procedure is an alternative to prosecution; but and Algeria all faced the risk of torture on their return. Their whether it is a viable alternative deserves consideration. going back home to escape detention in Canada was a dangerous option. A. Secrecy Ernst Zundel did not face the risk of persecution on return to Germany. He could have ended his Canadian detention at any (i) Two procedures time at no risk of persecution to himself simply by agreeing Ministerial certificates are commonly called “security certifi- to return to Germany. The detention of Ernst Zundel was, like cates”. However, the certificate law is not only about security; it much of his other legal troubles in Canada, self inflicted in order is about both more and less. It is about ‘more’ in the sense that it to bring publicity to his neo-Nazi cause. His detention can be encompasses violation of human or international rights, serious linked to his own design rather than circumstance. The other criminality, and organized criminality, as well as security1. five, though, are the victims of both design and circumstance, Certificates can be issued on any of these grounds. what they did and what others, on return, would do to them, the combination of the certificate procedure, its accompanying It is about ‘less’ in the sense that what the certificate proce- detention regime, and the risk of torture or death on return. dures are truly about is secrecy. When certificates are informally called “security certificates”, they are misnamed. Rather, they are II. The 2002 Changes “secrecy certificates”. Defenders of the certificate procedure have said that it is an old The Government of Canada does not need a certificate to procedure, not part of the anti-terrorism package which was remove a person from Canada who is inadmissible on grounds enacted as a result of September 11. The only person whose 1 Immigration and Refugee Protection Act, section 77(1).

2 ImmQuest VOLUME-7 ISSUE-7 of security, violating human or international rights, serious representative makes an application for non-disclosure to the criminality or organized criminality. In fact, many persons the Immigration Division of the Immigration and Refugee Board.8 Government considers to be inadmissible on grounds of secu- One difference between the Board procedure and the Federal rity, violating human or international rights, serious criminality Court certificate procedure is that the Board procedure may or or organized criminality are removed without certificates. may not involve non-disclosure to the other side. The Federal The standard procedure for removal, for all grounds of inadmis- Court certificate procedure is predicated on non-disclosure to sibility, is, first, the issuance of a report from an immigration the other side. Unless the Ministers determine there is to be non- officer stating that the individual is, in the opinion of the officer, disclosure, there is no point in engaging the certificate procedure. inadmissible. Next comes a determination by the Minister of If the Government, from the beginning, takes the view that non- Citizenship and Immigration or his delegate on whether or disclosure to the other side is appropriate, the Act mandates the not the report is well founded. If the Minister or his delegate certificate procedure. The Board power to order non-disclosure forms the opinion that the report is well founded, the report is arises, according to the wording of the legislation, “during an referred to the Immigration Division of the Immigration and admissibility hearing, a detention review or an appeal before the Refugee Board. The Immigration Division of the Immigration Immigration Appeal Division”, that is to say after the hearing and Refugee Board makes a determination on admissibility and, has commenced. The power appears designed as a safety valve, if the Division finds the person inadmissible, issues a removal where the Minister of Citizenship and Immigration at the com- order.2 mencement of admissibility proceedings is not aware of any Any person whom the Government considers to be inadmissible matter which requires non-disclosure, but where, during a on grounds of security, violating human or international rights, Board hearing, an unanticipated need for non-disclosure arises. serious criminality or organized criminality can be removed The Minister in such a situation has an option, either continuing through this procedure. Proceedings before the Immigration with the hearing and seeking an order of non-disclosure or with- Division of the Immigration and Refugee Board are, as a general drawing the allegation and recommencing under the certificate rule, to be conducted in public.3 Those proceedings can be con- procedure. ducted in private if the Division is satisfied that there is risk to The true significance of the certificate procedure is evident from the person, to fairness or to security.4 the title heading for the Division of the Act which sets out the These proceedings can even be conducted in the absence of the procedure. That heading is “Protection of Information” and not individual.5 One reason is the non-appearance of the person; “Security” or “Inadmissibility”. The certificate procedure would if the individual does not show up, the proceeding can be con- be better named the “protection of information procedure”, or cluded without the person.6 the “confidential procedure” or the “ex parte procedure”, or, as I suggested earlier, the “secret procedure”. Another, and for the purposes of this text, more relevant reason, is that disclosure would be injurious either to national security Though in form what the two ministers - the Minister of or to the safety of any person.7 The legislation provides that any- Citizenship and Immigration and the Minister of Public Safety thing done by the Federal Court under the certificate procedure and Emergency Preparedness - are doing when they sign a certif- can also be done by the Immigration Division of the Immigration icate is stating that the individual is inadmissible on grounds of and Refugee Board following the normal inadmissibility proce- security, violating human or international rights, serious crimi- dure. Instead of two Ministers signing a certificate, the Minister’s nality or organized criminality, in substance, what they are doing is determining that a person who is to be the subject of removal proceedings should not have disclosed to him or her some of the 2 Immigration and Refugee Protection Act, sections 44(1) and (2), 45(d). 3 Immigration and Refugee Protection Act, section 166(a). information relevant to removal. Unless there were this determi- 4 Immigration and Refugee Protection Act, section 166(b). nation that there needs to be secrecy, the whole procedure would 5 Immigration and Refugee Protection Act, section 164. 6 Immigration and Refugee Protection Act, section 168. 7 Immigration and Refugee Protection Act, section 77(2). 8 Rule 41.

3 ImmQuest VOLUME-7 ISSUE-7 be unnecessary and the Government could seek a removal order where security, violating human or international rights, serious in the normal way, as it does for all others the Government con- criminality or organized criminality was at issue. Otherwise, the siders inadmissible. possibility of obtaining a removal order against a person on the ground that the person is inadmissible on grounds of security, This difference between form and substance speaks to one change violating human or international rights, serious criminality or that needs to be made to the current procedure. It is always a bad organized criminality through the normal removal procedures idea when form and substance diverge. It leads to confusion and would not have been included in the law. misinformation. The uninitiated might think that the certificate procedure is in substance about security, violating human or The French version is a bit better, saying, more sensibly, in a international rights, serious criminality or organized criminality, translation I have done myself, that a certificate, once signed, with non-disclosure an unfortunate by-product. In reality, the shall be referred to Federal Court. Though the French version certificate procedure is all about non-disclosure. It has no other is not a piece of nonsense, as the English version is, the French justification for its existence. version too gives no clue as to what triggers the choice of this removal procedure rather than the non-certificate removal pro- The legislation about certificates is badly drafted because it cedure. The only clue we are left with is the Division heading is only the heading of the section “protection of information” “Protection of information”; in French “Examen de renseigne- which indicates its purpose. The Interpretation Act tells us that ments à protéger”. we cannot use marginal notes to interpret an Act.9 The relevant provision in the statute gives no clue when the power to issue This opacity in the legislation speaks to one reform that needs certificates is to be exercised. to be made, a reform of honesty in legislation. The legislation needs some explanation or justification for exercise of the power The legislation, in English, says that the relevant Ministers “shall to commence the extraordinary secret procedure. The legislation sign a certificate”.10 But the legislation does not say when a certifi- needs to say something to the effect that: cate shall be signed, what the preconditions for signing might be, what factors are relevant to signing, what triggers the obligation “If the Minister of Citizenship and Immigration and the to sign. Minister of Public Safety and Emergency Preparedness are of the view that it is necessary, in order to seek the removal of a The word “shall” denotes a duty rather than a discretion. In person from Canada on grounds of security, human or inter- theory, it is a duty that is enforceable in court in mandamus pro- national rights, serious criminality, or organized criminality, ceedings. Once the word “shall” is used, the court can order those to provide to the tribunal information that, for security or upon whom the duty is imposed to do what they are required safety reasons, cannot be disclosed to the person, they may to do, provided a person who seeks the order has standing. In sign a certificate stating that the person is inadmissible on one this case, in theory, the Federal Court, because the word “shall” or more of those grounds”. is used, could order the Ministers to issue a certificate if they refused to do so on the request of a victim or potential victim of This proposed amendment would be more than just honesty. It a person inadmissible on grounds of security, violating human or would, one hopes, direct the Ministers to the real question they international rights, serious criminality or organized criminality. have to decide, whether it is really necessary to resort to a secret procedure to remove a person from Canada. If removal is pos- But what circumstances would require the Ministers to follow sible through a procedure which allows for full disclosure to the the certificate procedure rather than the standard immigration individual, that is the procedure which should be preferred. removal procedure? The drafters of the legislation could not have intended, despite the plain wording of the English version of this By obfuscating the choice between secrecy and disclosure, by part of the legislation, to impose an obligation on the Ministers making the choice seem to be between security or safety on to follow the certificate procedure in every possible situation the one hand and endangerment of Canada or Canadians on the other hand, the legislation makes recourse to secrecy all too 9 Section 14. 10 Section 77(1).

4 ImmQuest VOLUME-7 ISSUE-7 easy. Secrecy and safety are not necessarily the same. Yet, the way Under the old Immigration Act, the Security Intelligence and the legislation is now drafted, the difference between the two is Review Committee (SIRC), established under the Canadian blurred. The legislation needs redrafting so that it is apparent Security Intelligence Service Act, participated in security review that the two are distinct. of individual cases. After the Ministers issued a certificate, and before the matter went to Federal Court, the issue of the rea- There is a difference in the standard of review of Government sonableness of the certificate, in the case of permanent residents, determinations under the two procedures. Under the ordinary went to the Review Committee. The Review Committee formed immigration procedure, the tribunal, the Immigration Division its own independent conclusions whether or not a certificate of the Immigration and Refugee Board, makes the substantive should be issued.13 determination. Under the “protection of information procedure”, the two Ministers decide and the tribunal, the Federal Court, just The Review Committee is an expert, independent tribunal. Its determines the reasonableness of the government decision. members are familiar with security issues. They were not always willing to defer to judgments of government officials on security However, this difference is more apparent than real. The deci- matters. sion of the Immigration Division of the Immigration and Refugee Board is to be based on “facts for which there are rea- Though Minister Elinor Caplan was quick to seize on the sonable grounds to believe that they have occurred, are occur- September 11 tragedy to urge Parliament to pass Bill C-11 as a ring or may occur”.11 It is hard to see the substantive difference response, Bill C-11 was designed long before September 11, with between that and a Federal Court determination that a certificate entirely different circumstances in mind. Though alleged terror- is reasonable.12 ists were caught up in the certificate procedure before September 11, these certificates before September 11 were more typically The Immigration and Refugee Protection Act recognizes that non- used against organized crime. disclosure to the party concerned requires compensatory pro- cedural safeguards. That is presumably the reason why, once Joseph Chiarelli, for instance, was the subject of a certificate, as the Government decides to go down the non-disclosure road, a person likely to engage in organized crime.14 He was subject to the matter goes immediately to Federal Court. The quality of a removal to Italy where torture on return was not an issue. hearing and procedural safeguards, as well as the competence For organized crime, the Government was concerned with of those deciding, is higher at the Federal Court than at the delays in removal. Consideration by the Security and Intelligence Immigration Division of the Immigration and Refugee Board. Review Committee may have seemed like a time-consuming and However, that difference is not enough. Those held in indefi- unnecessary step. Parliament did not consider what the certifi- nite detention based on undisclosed evidence are not pre- cate procedure should be as a result of September 11 because pared to accept their fate merely because it is dished out by the Bill C-11 was by then too far down the pipeline for that consid- Federal Court rather than by the Immigration Division of the eration to be viable. The development of a certificate procedure Immigration and Refugee Board. More is needed. in light of September 11 remained to be done. In hindsight, one can say, from a post-September 11 perspective, that the old law, (ii) Review by the Security Intelligence with its system of review by the Security and Intelligence Review Review Committee Committee, was better than the law that replaced it. There are additional procedural safeguards that the law has had (iii) Disclosure or has now to compensate for the fact that there is non-disclo- sure. An historical safeguard was the review of a certificate by the The Supreme Court of Canada in February 2007 in the case of Security Intelligence Review Committee. Charkaoui15 declared the system legislated in 2002 to be uncon- stitutional. The result was amended legislation in 2008 to allow

13 Section 39(9). 11 Immigration and Refugee Protection Act, section 33. 14 See Chiarelli v. Canada (Minister of Employment & Immigration) [1992] 1 S.C.R. 711 12 Immigration and Refugee Protection Act, section 78. 15 Charkaoui, Re, 2007 SCC 9

5 ImmQuest VOLUME-7 ISSUE-7 for appointments of special advocates bound by confidentiality after proceedings are completed have been respected. A counsel to whom full disclosure is given. who ignores the undertaking, after all, risks disbarment. In other proceedings where one party seeks confidentiality, the Some counsel for the individual may prefer to know only what Federal Court, by rule, has a power to disclose the confidential the client knows. Asking counsel to argue a case without dis- material to the counsel for the other party where that counsel closure to the client makes seeking instructions difficult, if not gives an undertaking not to disclose the confidential material to impossible. Counsel would be required to act based on a deter- his/her client, not to copy the material or permit it to be copied, mination of what the instructions of the client were likely to be if and to destroy the material when it is no longer needed for the the client knew of the undisclosed information, rather than what proceeding.16 This procedure is commonly followed when a party the instructions of the client, in fact, are. seeks in Court to challenge a denial by a Government depart- This awkward position for counsel is preferable to the total ment of access to information under the Access to Information darkness in which both counsel and client now find themselves Act.17 under the certificate procedure. Nonetheless, there may be some One of the grounds for refusal to disclose a record requested counsel who prefer to limit their knowledge to what their clients under the Access to Information Act is that the record know so that the client can give instructions. Or their clients may prefer that their counsel be limited in this way. In that situation, “contains information obtained or prepared by any govern- the Court appointment of a special advocate is a fallback. The ment institution, or part of any government institution, that is Act needs amendment either to allow the Federal Court rules on an investigative body specified in the regulations in the course disclosure to counsel to operate or, in the alternative, to provide of lawful investigations pertaining to... activities suspected for a special advocate rather than for the provision of a special of constituting threats to the security of Canada within the advocate in every case. meaning of the Canadian Security Intelligence Service Act”.18 Mohammed Harkat challenged the constitutionality of the It seems strange that, if a person seeks to obtain security infor- special advocate regime in a case decided in December 2010.20 mation through Access to Information, that information can be Mr. Justice Simon Noël found the law constitutional and certi- disclosed to his/her counsel in court before a Court decision on fied a question in January 2011 for the Federal Court of Appeal.21 access is made, and for the purpose of arguing access. But if the Harkat took advantage of the certification and commenced person seeks to obtain that same information through the certifi- an appeal.22 As of the date of writing the appeal has yet to be cate immigration removal proceedings, his/her counsel cannot determined. have access to that information before a Court decision on access. The Immigration and Refugee Protection Act certificate procedure (iv) Interrogatories specifically forbids disclosure to counsel in advance of a Court A person subject to a certificate procedure is to be given a ruling on disclosure.19 This specific Act prohibition presumably summary of the undisclosed information.23 That summary is takes precedence over the more general Federal Court rules. better than nothing. But more is possible. But one has to wonder why this so. The Federal Court rule on Persons subject to certificate procedures should be allowed to disclosure to counsel for the opposing side, subject to a confiden- submit specific questions to the Minister on the summary of tiality agreement, has a long history, a rich jurisprudence, and information provided to him or her. If the Minister objects to the nothing indicating its failure. As far as one can tell, undertakings answering of the question, the Court could rule on the objection. by counsel not to disclose, not to copy, and to destroy materials This procedure was followed in at least one case,24 but should be formalized.

16 Rule 151(2). 20 2010 FC 1242 17 See for instance Do-Ky v. Canada (Minister of Foreign Affairs & International Trade), A-200- 21 2011 FC 75 97, T-2366-95, May 6, 1999. 22 A‑76‑11 18 Section 16(1)(a)(iii). 23 Immigration and Refugee Protection Act, section 77(2). 19 Section 83(1)(e). 24 In Harkat, Re, 2003 FC 918 paragraph 17 Madam Justice Dawson.

6 ImmQuest VOLUME-7 ISSUE-7 (v) An appeal the impossibility of appeal through the confidential procedure seemed to be just the irrational workings out of a poorly engi- The immigration and citizenship systems are rife with appeal neered piece of legislation. denials. The absence or denials of appeals are often problematic. In general, procedures should be more elaborate once there is Parliament denies appeals in an attempt to generate quick and non-disclosure than when there is full disclosure. In a simple sort final results. But this attempt almost never works. The experi- of way, the drafters of the legislation have accepted that princi- ence has been that systems without appeals take longer to gener- ple. But they have not carried the principle through consistently, ate final results than systems with appeals because of the variety allowing for access to the Federal Court of Appeal when there is of other recourses to which counsel resort and which the courts full disclosure but denying it when there is confidentiality. Here, accept in order to compensate for the absence of appeals. too, there should have been a possibility of access to the Federal As well, Parliament denies appeals on the assumption that it Court of Appeal if the Federal Court certifies that a serious ques- is only private individuals who benefit, that appeals are not in tion of general importance is involved. This was the old law, the public interest. However, the reality is that at first instance before June 28, 2002. That old law was reinstated in 2008 with the Government sometimes loses cases it should have won and the amendments made consequent to the Charkaoui decision in would likely have won if there were an appeal. In these cases, the the Supreme Court of Canada. public interest is frustrated by an absence of an appeal. B. Detention Appeal denial is all too common, and all too often misplaced. Added to this sorry litany, in 2002, was the denial of an appeal i) Detention review to those the Federal Court has determined to be inadmissible The certificate procedure has its own detention regime. Detention on grounds of security, violating human or international rights, is subject to review by the Federal Court after 48 hours, and, if serious criminality or organized criminality.25 detention is maintained, after that, every six months.27 For those inadmissible on grounds of security, violating human Those alleged to be inadmissible on grounds of security, violat- or international rights, serious criminality or organized crimi- ing human or international rights, serious criminality or orga- nality, as well, it was anomalous. If a permanent resident goes nized criminality who go into the normal removals process are through the normal, public procedure, through the Immigration subject to the normal detention procedure. Detention review is Division of the Immigration and Refugee Board, and loses, conducted by the Immigration Division of the Immigration and the person has no appeal to the Immigration Appeal Division Refugee Board and not by the Federal Court. Detention review is of the Immigration and Refugee Board.26 However, the person conducted first, 48 hours after detention, second, one week after can seek leave and judicial review of the inadmissibility decision detention, and after that every thirty days after detention.28 in Federal Court, and, if leave is granted but judicial review is denied, then seek certification by the Federal Court of a serious This differentiation between detention review by the Federal question of general importance. If the Federal Court certifies a Court and by the Immigration Division of the Immigration and question, the person can appeal to the Federal Court of Appeal. Refugee Board of those alleged to be inadmissible on grounds of security, violating human or international rights, serious There was no particular reason why access to the Federal criminality or organized criminality is, to a certain extent, miti- Court of Appeal should be possible once the Government gated by the fact that detention reviews, in the case of persons determined that all documents can be disclosed, but not pos- detained outside of the certificate procedure, can be waived by sible once the Government determined that some documents, the individual where there is no change of circumstance from for security reasons, should not be disclosed. The possibility one thirty-day period to the next and by the fact that persons of appeal through the procedure that allows for disclosure and concerned detained under the certificate procedure can apply

25 Then section 80(3). 27 Immigration and Refugee Protection Act, section 82(2). 26 Immigration and Refugee Protection Act, section 64(1). 28 Immigration and Refugee Protection Act, section 57.

7 ImmQuest VOLUME-7 ISSUE-7 The absence of elements that can assist in determining the length for accelerated detention reviews by way of motion before the of time that detention is likely to continue weighs in favour of scheduled six-month detention review where there is a change of the individual. The presence of elements that can assist in deter- circumstance in the intervening period. All the same, there is no mining the length of time that detention is likely to continue obvious reason for these differences in the two detention regimes weighs against the individual. In other words, a person who faces for the two different procedures for determining inadmissibility indefinite detention has a more compelling case for release than on grounds of security, violating human or international rights, a person who faces time-limited detention. serious criminality or organized criminality. But factors are just that. They do not tell us what the decision will There is no reason why those subject to a procedure involv- be. The factors alone do not ensure any one person’s detention ing secret documents should be subject to a harsher detention or release. regime than those subject to a procedure involving full disclo- sure. Secrecy does not justify detention. To take a simple worst-case scenario, someone is determined to blow us up, but faces torture on return to his country of origin. There may be a logic to keeping detention review in Federal What is to be done? Either the risk of torture or the terrorist Court once evaluation of the determination by the Government convictions of the detainee may evaporate. But, in the absence that the person is inadmissible on grounds of security, violating of either of these events, we may have to face up to the possibil- human or international rights, serious criminality or organized ity of indefinite detention simply in order for society to protect criminality is itself in Federal Court. But the other differences itself. We cannot be so intolerant of indefinite detention that we with the standard detention regime have no logic and should be would accept being blown to smithereens rather than detaining removed. a would-be bomber. The differentiation in the time lags between detention reviews for The Federal Court32 and the Federal Court of Appeal33 have both those detained under the certificate procedure and the removal ruled that detention under the certificate system is constitu- procedure without a certificate should disappear. Those detained tional, even when prolonged. These rulings have all occurred in under the certificate procedure should be entitled to detention the context where individuals were invoking legal remedies to reviews, as are those now detained where there is no certificate, prevent their removal. The courts reasoned that, if removal is after 48 hours, seven days and then every thirty days. delayed and detention prolonged because the individual pursues ii) Indeterminate detention legal remedies, the individual cannot complain of the length of the detention resulting from the pursuit of those remedies. The liberty of the individual has to be balanced against the secu- rity of the state. The balance shifts over time. The longer a person In themselves, these decisions do not tell us what the constitu- is detained, the more weight is to be given to the person’s liberty tional ruling would be once all legal remedies are exhausted and interest. This shifting balance is recognized both in the juris- the person becomes removable if there were no risk of torture. In prudence29 and in the Immigration and Refugee Protection Act this context, the delay in removal can no longer be attributed to regulations.30 the individual’s pursuit of legal remedies. Nonetheless, some of the statements the courts have made have indicated that indefi- Another factor besides length of time relevant to the balance, nite detention in this context would be constitutionally accept- according to the regulations, is able. The courts have said that intention cannot be indefinite “whether there are any elements that can assist in determining “without good reason”, suggesting that it can be indefinite with the length of time that detention is likely to continue and, if good reason.34 so, that length of time”.31

32 Almrei v. Canada (Minister of Citizenship & Immigration), 2004 FC 420, 19 March 2004; 29 Sahin v. Canada (Minister of Citizenship & Immigration), 1194 CarswellNat 1425, IMM- Canada (Minister of Citizenship & Immigration) v. Mahjoub [2004] 1 F.C.R 493. 3730-94, Rothstein J., 19 October 1994. 33 Ahani v. Canada (Minister of Citizenship & Immigration), 1994 CarswellNat 1485, 30 Regulation 248(b). 11 July 2006. 31 Regulation 248(c). 34 See for instance, Ahani v. Canada (Minister of Citizenship & Immigration), Ibid., at para. 14.

8 ImmQuest VOLUME-7 ISSUE-7 Indefinite detention is not new to Canada. Indeterminate deten- detention. The items on each side of the scale would be different tion exists for dangerous offenders under the Criminal Code.35 for indeterminate immigration detention from those for inde- The Supreme Court of Canada in the case of Thomas Patrick terminate criminal detention. But, in my view, the final result, a Lyons ruled that indeterminate detention for dangerous offend- finding of proportionality would be the same. ers is constitutional, consistent with the Canadian Charter of Put simply, if we have to choose between indeterminate deten- Rights and Freedoms.36 That ruling does not ensure that inde- tion and return to torture, the choice has to be indeterminate terminate immigration detention for a person subject to an detention. Return to torture can never be a viable choice. inadmissibility certificate who faces a risk of torture abroad if removed would survive Charter scrutiny. But it addresses and One significant difference between indeterminate detention of counters many of the arguments that might be raised to chal- dangerous offenders and indefinite detention of those subject lenge indeterminate immigration detention of a person subject to certificates who face torture on return is that the Canadian to an inadmissibility certificates. legal system addresses the indeterminate detention of danger- ous offenders directly. The indefinite detention of those subject For instance, the Court in the Lyons case addressed the problem to certificates facing torture on return is something that just of false positives, people detained indefinitely as dangerous happens. offenders based on inaccurate predictions. The majority of the Court endorsed this statement of Floud and Young:37 We need a law in this area to parallel the law of indeterminate detention of dangerous offenders. When indefinite immigration “His [the person indefinitely detained] being in the wrong by detention occurs, it should be a conscious choice rather than an virtue of the risk he represents is what entitles us to consider inadvertent result of other choices. The present system of deten- imposing on him the risk of unnecessary measures to save the tion review every six months of those caught up in the certificate risk of harm to innocent victims”.38 procedure creates an illusion that detention is time limited when, The Supreme Court ruled that the guarantee of fundamental for those facing torture on return, in reality it is not. justice in the Canadian Charter of Rights and Freedoms does Would such a law discriminate against foreigners? The House not prevent indeterminate detention; all it does is enhance the of Lords, with a dissent, in the case of A(FC) viewed a similar procedural requirements before indeterminate detention can United Kingdom law to be discriminatory.41 The reasoning was be imposed. Where indeterminate detention is the result, the that once foreigners ceased to be removable, they were compa- Charter requirement of fundamental justice means that proce- rable to nationals, and nationals could not be detained indefi- dural protections “ought to be very rigorous”.39 Where indefinite nitely as security risks without a criminal conviction. The United detention is the result of the certificate procedure, the reasoning Kingdom Court of Appeal, which was overruled by the House of of the Supreme Court of Canada supports the enhanced proce- Lords, held the opposite point of view. According to the Court of dural protections this text advocates. Appeal, the distinction between the group, foreigners subject to The test for the Charter guarantee against cruel and unusual removal, and the sub-group, those not removable, is not based treatment or punishment set out in the Lyons case is gross pro- on nationality. portionality, again a form of balancing.40 The fact that, in cer- The House of Lords ignores an important distinction between tificate cases there is no criminal conviction, no proof beyond the indeterminate and the permanent. Nationals have permanent a reasonable doubt, weighs against the constitutionality of an status, not a status of indeterminate length. Those not remov- indefinite detention. The fact that the detention is the result of able because of the risk of torture abroad are stuck in a situation a desire to avoid return to torture weighs in favour of indefinite of indeterminate length, but, one would hope, not a situation

35 Section 753(4). that would last permanently. Regimes change. Over the course 36 R. v. L. (T.P.), 1987 CarswellNS 41, [1987] 2 S.C.R. 309. of time, a torture inflicting repressive regime may be replaced by 37 Jean Floud and Warren Young. Dangerousness and Criminal Justice, London: Heinemann, 1981. 38 Paragraph 100. 41 A(FC) v. Secretary of State for the Home Department, [2004] UKHL 56, Lord Walker of 39 Paragraph 100. Gestingthorpe dissenting. 40 Paragraph 40.

9 ImmQuest VOLUME-7 ISSUE-7 a democratic, rights-respecting regime. Even when the torture- tracking apparatus; to provide advance information about his/ inflicting regime remains, an individual may cease to be a person her proposed movements or other activities. of interest to the regime. Nationality is forever; the risk of torture Putting a person in prison means that virtually every aspect of is, one would hope, temporary. the person’s life is controlled by the prison institution. The UK The Supreme Court of Canada in the case of Charkaoui held that control-order scheme replicates prison control in a non-prison the result the House of Lords reached in A(FC) was distinguish- environment, allowing the state, through court orders, to control able because British law allowed for indefinite detention of for- almost as many aspects of a person’s life as would be controlled if eigners but not nationals. Canadian law does not allow explicitly the person were in prison. for indefinite detention of foreigners. Once a person is caught in This option allows for greater liberty to the individual than a detention situation which looks to be indefinite, the person can imprisonment and avoids any possible charge of discrimination be granted release by virtue of the Charter prohibition against between nationals and non-removable non-nationals. It deserves cruel and unusual treatment. consideration in Canada. iii) The UK example The Canadian Criminal Code, as a result of amendments made subsequent to 9/11, allows a provincial court judge to order that Even if Canada could avoid the consequences of the House-of- any person who is the object of reasonable grounds for suspi- Lords decision, the United Kingdom could not. After the House- cion enter into a recognizance to comply with reasonable condi- of-Lords decision, the UK government and Parliament had three tions to prevent terrorist activity.43 Detention may not be ordered choices, either: (i) change the detention law for nationals so that unless the person refuses to enter into the recognizance. it equated to the detention law of non-removable non-nationals; (ii) change the detention law for non-removable non-nation- The very existence of the UK legislation suggests that conditions als so that it equated to the detention law of nationals; or (iii) prescribed in a Canadian recognizance which replicate permis- change both laws so that they became the same. The UK chose sible terms in a UK control order would be reasonable. The the third option. possibility of this type of recognizance argues against using the immigration detention scheme as a way of protecting Canada The United Kingdom Parliament enacted legislation which from foreign nationals subject to inadmissibility determinations provides for government control orders that can be imposed but not removable because of risk of torture. on individuals to prevent their involvement in terrorism.42 The legislation applies to everyone, UK nationals as well as foreign- The remaining portion of this article will resume in the August ers. The legislation empowers the Court, on application of the issue of ImmQuest (7-8), beginning with a discussion on Government, to make an order preventing an individual from “Removal to Torture”. doing almost anything and requiring the individual to do a wide David Matas is a Winnipeg lawyer. He is a former chair of the range of things. Canadian Bar Association Immigration Law Section. An earlier The order may require the individual not to have in his/her pos- version of this paper was presented to the Canadian Bar Association session certain articles; not to use specified services; not to work Citizenship, Immigration and Refugee Law Continuing Legal at specified places; not to work at specified occupations; not to Education program, 14 May 2011, Lac Leamy, Quebec. associate with specified persons; not to live in certain places; or not to be at certain places. The order may require the individual to give access to his/her home; to allow the search of that place; to allow anything found there to be removed; to allow himself/ herself to be photographed; to co‑operate with his/her own monitoring; to comply with demands to provide information; to report at specified times and places; to wearing an approved

42 Prevention of Terrorism Act 2005 43 Section 83.3(8)(a). 10 ImmQuest VOLUME-7 ISSUE-7 H&C (Guyana) Case Tracker: Cases You Case: Karimullah v. Canada (Minister of Citizenship & Immigration) Should Know! Decider: Michael M.J. Shore J. Court: Federal Court Mario D. Bellissimo, C.S. Citation: 2010 FC 824 Refugee (Sri Lanka) Judgement: August 19, 2010 Case: Packinathan v. Canada (Minister of Citizenship & Docket: IMM-5903-09 Immigration) [31] It is the Court’s conclusion that, given the guidelines advis- Decider: Judith A. Snider J. ing the officer to consider the Applicant’s emotional needs, the Court: Federal Court submissions by his representative, the medical evidence about Citation: 2010 FC 834 his condition and treatment for depression, and the evidence Judgement: August 23, 2010 provided by his family, the officer unreasonably ignored his Docket: IMM-6640-09 emotional needs and, as such, the decision cannot stand. [10] The Board’s reasons – both in respect of well-founded fear and the possible IFA – rest on the situation for a Tamil male in H&C (Mandamus - Indian) Case: Singh v. Canada (Minister of Citizenship & Immigration) Colombo. In coming to its conclusions on both issues, the Board Decider: Yves de Montigny J. has not referred to the extensive evidence regarding widespread, Court: Federal Court arbitrary arrests, detention and mistreatment of Tamil men Citation: 2010 FC 757 originating from the north of Sri Lanka. In particular, there is Judgement: July 19, 2010 no reference to the July 2009 UNHCR report beyond a one-line Docket: IMM-2234-09 comment that cannot be said to accurately reflect the entirety of that document. A report of the UNHCR in April 2009 and a ORDER US DOS Report were not cited at all. Each of these documents THIS COURT ORDERS that this application for judicial contains extensive references to human rights violations and the review be granted. More specifically, the Court makes the follow- actions of the security forces and paramilitary groups through- ing two orders: out Sri Lanka. Further, in final submissions to the Board, counsel for the Applicant highlighted these documents as being directly • The Court declares that the requirement to hold a valid relevant to his client’s situation in Colombo. Yet, the Board failed passport found in s. 14(1) of the Regulations adopted under to mention this evidence, other than one part-sentence from the former Immigration Act did not require an Applicant one report. This evidence has a direct bearing on both the well- to actually have in his or her possession a hard copy of his foundedness of the Applicant’s fear, and on the IFA determina- or her passport, when it can be established by other means tion. It was open to the Board to consider and reject this evidence. that the Applicant holds a valid passport; However, the failure to even mention this contradictory evidence • The Court further orders CIC to process the application for raises the inference that it was ignored (Cepeda-Gutierrez, para. landing of the Applicant within 90 days of the release of this 17). As a result, the decision is not defensible. Order, in accordance with the law as it stood on December 23, 1998 and as interpreted in the reasons for this Order, and on the basis of the Applicant’s record on that date. • The Respondents are ordered to pay the Applicant a lump sum of $2,000.00.

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H&C (St. Vincent) ImmQuest – Editorial Board Case: Durrant v. Canada (Minister of Citizenship & Immigration) Decider: Anne Mactavish J. EDITORS-IN-CHIEF Court: Federal Court Cecil L. Rotenberg, Q.C. Certified Specialist Citation: 2010 FC 773 Toronto, Ontario Judgement: July 21, 2010 Tel: (416) 449-8866 Fax: (416) 510-9090 Docket: IMM-2917-09 Mario D. Bellissimo, LL.B., C.S. Certified Specialist [4] No consideration was given by the Officer to “public policy considerations and Barrister & Solicitor humanitarian grounds” as they related to the question of risk: Hinzman at para. 26. This is Ormston, Bellissimo, Rotenberg Toronto, Ontario an error. The question on an H&C application is not whether adequate state protection is Tel: (416) 787-6505 Fax: (416) 787-0455 available to the applicants in their country of origin, but rather whether, having regard to all of the applicants’ individual personal circumstances, they would face unusual, unde- served or disproportionate hardship if returned home. One Corporate Plaza, 2075 Kennedy Road, Scarborough, Ontario M1T 3V4 H&C (Vietnam – Medical – Interview Notes) Tel: (416) 609-3800 from Toronto Case: Nguyen v. Canada (Minister of Citizenship & Immigration) 1-800-387-5164 from elsewhere in Canada/U.S. Decider: Judith A. Snider J. Internet: http://www.carswell.com Court: Federal Court E-mail: [email protected] Citation: 2010 FC 852 Monday through Friday, 8:30 a.m. to 5:30 p.m. Judgement: August 27, 2010 Content Editor: Suzanne Sixsmith Docket: IMM-4719-09 Product Development Manager: [10] However, the Applicant refers to evidence in the CTR that indicates that an interview Graham Peddie was scheduled for the Applicant on March 30, 2009 (subsequently postponed to April © 2011 Thomson Canada Limited All rights reserved. No part of this publication may be 10, 2009). In his affidavit, filed with this application for judicial review, the Applicant reproduced, stored in a retrieval system, or transmitted, describes the areas of discussion with the Officer during the one-hour interview. in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the According to the Applicant, many of the matters raised at the interview were relevant to prior written permission of the publisher. the very question of whether the Applicant could afford to pay for anti-rejection medi- This publication is designed to provide accurate and cation if he were deported to Vietnam. The Applicant was not cross-examined on his authoritative information. It is sold with the under- standing that the publisher is not engaged in rendering affidavit. The Applicant’s responses during the interview appear to address many of the legal, accounting or other professional advice. If legal concerns raised by the Officer, in his decision, about the insufficiency of evidence on advice or other expert assistance is required, the services of a competent professional should be sought. The analysis the Applicant’s ability to pay for medication in Vietnam. The problem is that the CTR, contained herein represents the opinions of the authors and should in no way be construed as being either official which would normally contain the Officer’s interview notes, does not do so. Further, the or unofficial policy of any governmental body. interview is not referred to in the Officer’s decision. Nor did the Respondent obtain an Publications Mail Agreement affidavit from the Officer to explain the absence of the notes. In short, I cannot be satis- fied that the Officer had regard to the evidence obtained from the interview. On this basis, I will allow the judicial review. [11] I would, as a final note, observe that difficulty in accessing medical care in Vietnam is not determinative in an H&C application. The medical condition of the Applicant is only one factor that must be weighed with all of the relevant factors, including his lengthy criminal record. However, it is important that the Officer’s decision be made with regard to all of the evidence, including the results of any interview.

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