IMM-1647-98
Iqbal Singh (Applicant)
v.
The Minister of Citizenship and Immigration and the Solicitor General of Canada (Respondents)
Indexed as: Singhv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Rothstein J."Toronto, April 13, 20 and 21; Ottawa, May 6, 1998.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Interim application to obtain release from detention pending determination under Immigration Act, s. 40.1(4)(d) of reasonableness of Ministers' certificate — Applicant involved in fundraising, recruiting, organizing for allegedly terrorist organization — Ministers filing certificate with immigration officer applicant person described in Immigration Act, s. 19(1)(e), (f) — Applicant challenging constitutionality of s. 19(1)(e), (f) as violating rights to freedom of expression, association — Ministers' certificate final decision — Tripartite test for interim relief applied — No serious issue raised with respect to freedoms of expression, association — Balance of inconvenience favouring Ministers.
Constitutional law — Charter of Rights — Fundamental freedoms — Ministers filing certificate with immigration officer under Immigration Act, s. 19(1)(e), (f) — Applicant challenging constitutionality of provision as violating rights to freedom of expression, association (Charter, s. 2(b), (d)) — Whether serious issue disclosed — Applicant's alleged activities terrorism, subversion by force of Indian Government — Terrorism not constitutionally protected form of expression — Effect, not purpose, of government action that limits expression — No serious issue with respect to freedoms of expression, association.
This was an application for an interim order releasing the applicant from custody pending the determination of the reasonableness of a certificate under paragraph 40.1(4)(d) of the Immigration Act. This certificate was filed with an immigration officer by the Solicitor General of Canada and the Minister of Citizenship and Immigration who were of the opinion, based on a security intelligence report, that the applicant was a person described in paragraphs 19(1)(e) and (f) of the Act. The applicant, who is now in detention, was involved in fundraising, recruiting and organizing for a terrorist organization which is said to seek the subversion by force of the Indian Government. He argued that these activities are benign and entitled to Charter protection. Instead of attacking the lawfulness of his detention directly under paragraph 40.1(2)(b) of the Act, the applicant challenged the Ministers' certificate on the grounds that it was based on paragraphs 19(1)(e) and (f) which, it was argued, are unconstitutional as violating applicant's rights to freedom of expression and association under paragraphs 2(b) and (d) of the Charter. He also argued that the "Crown and its agents" have engaged in an abuse of the process and, for that reason as well, their certificate was invalid. The main issue was whether the Ministers' certificate was a violation of applicant's rights to freedom of expression and association which would justify the Court to grant interim relief by ordering that he be released from detention.
Held, the application should be dismissed.
A number of jurisdictional and procedural issues were raised in addition to the usual considerations on an application for interim relief. Since this application for interim relief was dismissed based on the finding that the balance of inconvenience favoured the Ministers, the Court did not find it necessary to decide the jurisdictional and procedural issues, except for the abuse of process issue. His Lordship did, however, make certain observations which might prove useful for future cases. For instance, it was pointed out that the Ministers' certificate is a final decision and that the abuse of process issue may be raised in the reasonableness proceeding under subsection 40.1(4) of the Immigration Act, rather than by way of separate judicial review or action.
Upon an application for interim relief, the Court must first determine whether a serious issue is disclosed. The applicant's alleged activities are terrorism and the subversion by force of the Government of India. With respect to the guarantee of freedom of expression, a two-part test has been set out to determine whether paragraph 2(b) of the Charter is engaged. The first part of the test is to determine whether an individual's activities fall under the sphere of conduct protected by paragraph 2(b); the second part is to determine whether the purpose or effect of the government's action is to restrict freedom of expression. As to the first part of the test, the applicant argued that, because the only basis for the certificate was his involvement in fundraising, recruiting and organizing for the Babbar Khalsa International, there was no nexus between his expression and any specific actions of that organization that could be considered to be terrorism. The applicant's activities, although themselves non-violent, can hardly be "expression" within the meaning of paragraph 2(b ) of the Charter when he carried them out on behalf of an organization that there are reasonable grounds to believe is engaged in terrorism or subversion of a state by force. Such activities were undertaken in support of terrorism which is not a constitutionally protected form of expression. Terrorists cannot invoke freedom of expression as justification for the violent activities in which they are involved. The second test requires the Court to consider whether it is the purpose or the effect of the government activity which limits expression. The purpose of the certificate is to enable the government to commence a process which may result in the removal of a person who is a threat to the security or interests of Canada, to protect the lives or safety of persons in Canada and to protect sensitive security and criminal intelligence information. This immigration legislation is not directed at expression as such, but rather deals with admissibility of persons to Canada. In this case, it is the effect, rather than the purpose, of the government action that limits expression. Under paragraph 2(b), it is incumbent upon the applicant to demonstrate that his activities promote one of the principles and values underlying the freedom of expression. No such evidence was advanced. The applicant has not made out a serious issue to be tried with respect to his freedom of expression. The same could be said with respect to his freedom of association under paragraph 2(d) of the Charter. As to irreparable harm, the applicant's detention would cause him irreparable harm, since he is operating a trucking business with seven employees and the business could not survive without his presence. Finally, the balance of inconvenience favours the Ministers. The Immigration Act charges the Ministers with protecting the public interest. On the basis of the relevant provisions of that Act and the certificate issued by the Ministers, there would be irreparable harm to the public interest from the restraint sought by the applicant. The present case appears to be an exemption case, since the applicant is simply asking that he be exempted from application of the impugned legislation and the Ministers' action thereunder. However, it should be treated as a suspension case because of the risk of provoking a cascade of stays and exemptions in cases such as this and because of significant harm to the public from such exemptions. There are public interest factors that favour the applicant, but they are outweighed by the public interest that favours the continued application of paragraphs 19(1)(e) and (f) of the Act and the Ministers' certificate. The scheme of section 40.1 is to have an expedited judicial review of the reasonableness of the Ministers' certificate, which is the most effective means of minimizing harm to the applicant while recognizing the public interest in national security and the protection of public safety.
statutes and regulations judicially considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b),(d), 7, 9, 10(c).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.2 (as enacted by S.C. 1990, c. 8, s. 5), 18.4 (as enacted idem).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(e)(ii) (as am. by S.C. 1992, c. 49, s. 11), (iv)(B) (as am. idem), (C) (as am. idem), (f)(ii) (as am. idem), (iii)(B) (as am. idem), 38.1 (as enacted idem, s. 28), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 52 (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42), 53 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 17; S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12).
cases judicially considered
applied:
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94 N.R. 167.
considered:
Suresh v. Canada (1996), 105 F.T.R. 299 (F.C.T.D.); RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 111 D.L.R. (4th) 385; 54 C.P.R. (3d) 114; 164 N.R. 1; 60 Q.A.C. 241; Canada (Canadian Human Rights Commission) v. Canadian Liberty Net, [1998] S.C.J. No. 31 (QL); Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; (1987), 38 D.L.R. (4th) 321; [1987] 3 W.W.R. 1; 46 Man. R. (2d) 241; 25 Admin. L.R. 20; 87 CLLC 14,015; 18 C.P.C. (2d) 273; 73 N.R. 341.
referred to:
Ahani v. Canada, [1995] 3 F.C. 669; (1995), 32 C.P.R. (2d) 95; 100 F.T.R. 261 (T.D.); affd (1996), 37 C.R.R. (2d) 181; 105 F.T.R. 299 (F.C.A.); leave to appeal to S.C.C. refused [1997] 2 S.C.R. v; Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174; (1995), 129 D.L.R. (4th) 226; 103 F.T.R. 105 (T.D.).
APPLICATION for an interim order releasing the applicant from custody pending the determination of the reasonableness of a Ministers' certificate under paragraph 40.1(4)(d) of the Immigration Act. Application dismissed.
appearances:
Lorne Waldman for applicant.
Robert F. Batt for respondents.
solicitors:
Green and Spiegel, Toronto, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
Rothstein J.: In relation to proceedings in this Court in court file DES-1-98 under section 40.1 of the Immigration Act, R.S.C., 1985, c. I-2 [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31], this is an application in a separate judicial review for an interim order under section 18.21 of the Federal Court Act, R.S.C., 1985, c. F-7 [as enacted by S.C. 1990, c. 8, s. 5], releasing the applicant from custody pending the determination under paragraph 40.1(4)(d) of the Immigration Act2 of the reasonableness of a ministers' certificate.
On April 2, 1998, under subsection 40.1(1) of the Immigration Act, the Solicitor General of Canada and the Minister of Citizenship and Immigration filed a certificate with an immigration officer, certifying that they were of the opinion, based on a security intelligence report received and considered by them, that the applicant is a person described in subparagraph 19(1)(e)(ii) [as am. by S.C. 1992, c. 49, s. 11], clauses 19(1)(e)(iv)(B) [as am. idem,] and (C) [as am. idem], subparagraph 19(1)(f)(ii) [as am. idem] and clause 19(1)(f)(iii)(B) [as am. idem] of the Immigration Act.3
Under paragraph 40.1(2)(b), a senior immigration officer or adjudicator is required to detain or make an order to detain the applicant until it is determined by the Court under paragraph 40.1(4)(d) whether the certificate is reasonable. The applicant is now in detention.
In accordance with paragraph 40.1(3)(a) the Ministers' certificate has been referred to this Court for a determination as to whether it should be quashed. Under paragraphs 40.1(4)(c) and (d) the Court, after giving the applicant a reasonable opportunity to be heard, shall determine whether the certificate is reasonable and if found not to be reasonable, quash the certificate. The matter is now proceeding to a reasonableness hearing on May 7 and 8, 1998.
The purpose of this interim application by the applicant is to obtain his release from detention. The applicant does not challenge the detention under paragraph 40.1(2)(b) directly. The constitutionality of that provision (as well as the entirety of section 40.1 other than subsection (5.1)) has already been confirmed in relation to sections 7, 9 and paragraph 10(c) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]. See Ahani v. Canada, [1995] 3 F.C. 669 (T.D.); affd (1996), 37 C.R.R. (2d) 181 (F.C.A.) leave to appeal the Supreme Court of Canada refused, July 3, 1997 [[1997] 2 S.C.R. v].
Rather than attack the lawfulness of his detention directly by challenging paragraph 40.1(2)(b), the applicant challenges the Ministers' certificate on the grounds that it is based on paragraphs 19(1)(e) and (f) of the Immigration Act which the applicant says are unconstitutional as violating his right to freedom of expression and association under paragraphs 2(b) and (d) of the Canadian Charter of Rights and Freedoms (Charter).4 Alternatively the applicant says that the Ministers have interpreted paragraphs 19(1)(e) and (f) in a manner that violates the applicant's Charter rights of expression and association. He also says that the "Crown and its agents" have engaged in an abuse of the process and for that reason as well their certificate is invalid. The applicant's position is that if he can demonstrate a serious issue, irreparable harm and that the balance of inconvenience favours him, the Court has jurisdiction under section 18.2 of the Federal Court Act to grant interim relief in this proceeding by ordering that he be released from detention.
In Suresh v. Canada (1996), 105 F.T.R. 299 (F.C.T.D.), Cullen J. determined that the jurisdiction of the Court under subsection 40.1(4) to deal with a Ministers' certificate is limited to determining the reasonableness of the certificate. He found that the determination of reasonableness does not include determining the constitutional validity of a certificate; thus, the applicant says he is obliged to institute this separate judicial review proceeding to deal with the constitutional issues.
PRELIMINARY ISSUES
There are a number of difficult jurisdictional and procedural issues that the application raises in addition to the usual considerations (serious issue, irreparable harm, balance of inconvenience) on an application for interim relief.
(a) Is a constitutional challenge to the Ministers' certificate properly the subject of judicial review or must the matter proceed by way of action?
(b) If the matter must proceed by way of action, may the Court convert this judicial review to an action under section 18.4 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act and if it may, does it have jurisdiction to grant interim relief under section 18.2 of the Federal Court Act?
(c) Is the Ministers' certificate an interim or final decision and if it is interim, may the Court hear and decide this application?
(d) Does the Court's jurisdiction under section 18.2 to grant interim relief allow the Court to suspend or stay the operation of paragraph 40.1(2)(b)?
(e) May the abuse of process issue be dealt with by the Court in the reasonableness hearing under subsection 40.1(4) or must it be dealt with by way of separate judicial review or action?
In view of my decision to dismiss this application for interim relief based on finding that the balance of inconvenience favours the Ministers, it is not necessary for me to decide these jurisdictional and procedural issues except for the abuse of process issue. A few observations however may be useful for the purpose of future cases.
(a) Is a constitutional challenge to the Ministers' certificate properly the subject of judicial review or must the matter proceed by way of action?
Initially, I would have thought that a constitutional challenge to legislation would have to be brought by action as was done in Ahani, supra. However, in this case the applicant also challenges the constitutionality of the Ministers' certificate. In addition, I note the dicta of Bastarache J. in the recent Supreme Court of Canada decision in Canada (Canadian Human Rights Commission) v. Canadian Liberty Net, [1998] S.C.J. No. 31 (QL) in which he makes reference to an originating notice of motion for a free-standing injunction. This question of procedure entails significant analysis and on this application the arguments were not fully developed. Further, the parties did not deal with the application, if any, of Canadian Liberty Net, supra. Given my decision to dismiss the application for interim relief on the basis of balance of inconvenience favouring the Ministers, such extensive analysis is unnecessary. I shall assume the present proceeding to be a valid one for bringing this request for interim relief before the Court.
(b) If the matter must proceed by way of action, may the Court convert this judicial review to an action under section 18.4 of the Federal Court Act and if it may, does it have jurisdiction to grant interim relief under section 18.2 of the Federal Court Act.
By assuming the validity of this judicial review proceeding, it follows that relief may be granted under section 18.2.
(c) Is the Ministers' certificate an interim or final decision and if it is interim, may the Court hear and decide this application?
I have no doubt that the Ministers' certificate is a final decision. The respondents suggest that because of the automatic triggering of the reasonableness proceeding in this Court, the certificate is an interim decision only. The respondents also say that before the applicant is removed from Canada, the Minister of Citizenship and Immigration must take removal proceedings under sections 52 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 7; S.C. 1992, c. 49, s. 42] and 53 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 17; S.C. 1992, c. 49, s. 43; 1995, c. 15, s. 12] of the Immigration Act and therefore this is another reason the Ministers' certificate should be considered interim. I cannot accept that argument. The reasonableness hearing is a Court review of the Ministers' certificate. See Ahani, supra, at page 699. The certificate is a decision of a federal tribunal, i.e. the Ministers; the statute requires that it be referred to the Federal Court forthwith after it is signed and filed with an immigration officer. That it is, by law, referred to the Federal Court for a determination as to whether it is reasonable and, if not, whether it should be quashed, by necessary implication, means that it is a final decision.
(d) Does the Court's jurisdiction under section 18.2 to grant interim relief allow the Court to stay the operation of paragraph 40.1(2)(b)?
The relief the applicant seeks is to be released from custody. The applicant says that "the effect of such an order would be to suspend the effect of paragraph 40.1(2)(b ) which requires that a senior immigration officer or adjudicator make an order detaining the applicant pending the (reasonableness) determination". The applicant's constitutional challenge is against paragraphs 19(1)(e ) and (f) of the Immigration Act, which are incorporated by reference in section 40.1 of the Act and/or against the Ministers' certificate. The certificate under subsection 40.1(1) is premised on the Ministers forming the opinion that the applicant is a person described in paragraphs 19(1)(e) and (f) of the Act. If the basis for the formulation of that opinion is unfounded, i.e. because paragraphs 19(1)(e) and (f) are unconstitutional or the Ministers in their interpretation of paragraphs 19(1)(e) and (f) have breached the applicant's constitutional rights, there would have been no valid certificate filed with an immigration officer and the applicant should not have been detained under paragraph 40.1(2)(b). If the Court were to grant interim relief, it would be in the form of either a suspension of paragraphs 19(1)(e) and (f), or an exemption therefrom, or a suspension of the Ministers' certificate. This interim relief, if granted, would result in the removal of the underlying justification for the detention of the applicant. The applicant would have to be released, not because of an order granting his release or an order suspending or staying the effect of paragraph 40.1(2)(b), which is what the applicant has requested, but because a precondition necessary to his detention has been suspended. Therefore, it is not necessary to consider whether the operation of paragraph 40.1(2)(b) can be suspended or stayed in this case.
(e) May the abuse of process issue be dealt with by the Court in the reasonableness hearing under subsection 40.1(4) or must it be dealt with by way of separate judicial review or action?
With respect to abuse of the process, as I understand the applicant's argument, he says that the Ministers' officials improperly tried to coerce him into providing information about his friends and associates and when he refused to do so, caused proceedings under section 40.1 to be initiated against him. While I do not say that abuse of the process issues are always properly the subject of the reasonableness inquiry under subsection 40.1(4), the nature of the applicant's arguments in this case make it apparent that they should be part of this reasonableness hearing. The applicant's assertions raise the question of the bona fides of the Ministers' certificate and if the Court were to find that the evidence on which the Ministers' certificate was based was not reliable, that would go directly to the reasonableness of the certificate. Therefore, in this case the abuse of process issues may be raised in the reasonableness proceeding.
THE TRIPARTITE TEST
Assuming the procedure by which the applicant seeks interim relief to be valid, I turn to the tripartite test for interim relief. As to serious issue, the applicant makes two arguments. In his written submission, he says that paragraphs 19(1)(e) and (f) of the Immigration Act "are of no force and effect" as they are inconsistent with the applicant's freedom of expression and association guaranteed under paragraphs 2(b ) and (d) of the Charter "given that the sanction of removal and inadmissibility was and can be premised entirely on lawful expressive activity and association". I interpret this to be a challenge to the constitutional validity of the legislation itself i.e. paragraphs 19(1)(e ) and (f) of the Immigration Act. In oral argument and elsewhere in his written argument, counsel focussed not on the constitutional validity of the legislation but on the Ministers' interpretation of the legislation. This argument appears to be that the Ministers interpreted terms such as "terrorism" in section 19 too broadly so as to take into account non-violent activity and as such, have included activity which the applicant says is a lawful exercise of his freedom of expression and association. This I interpret to be a challenge to the constitutional validity of the Ministers' certificate.
For purposes of interim relief, the role of the Court is to determine "on the basis of common sense and an extremely limited review of the case on the merits", whether a serious issue is disclosed (see RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at page 348).
The applicant's alleged activities are terrorism and the instigation or subversion by force of the Government of India. His activities are said to be in relation to the Babbar Khalsa International (BKI), an organization that the Ministers are of the opinion, based on security intelligence reports, there are reasonable grounds to believe will engage, has engaged, or is engaging in terrorism, or the subversion by force of the Government of India.
With respect to the guarantee of freedom of expression, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at page 978 sets out a two-part test to determine whether paragraph 2(b) is engaged. The first part of the test is to determine if an individual's activities fall under the sphere of conduct protected by paragraph 2(b); the second part is to determine whether the purpose or effect of the government's action is to restrict freedom of expression. Where the purpose is to restrict expression, paragraph 2(b) is engaged and the onus shifts to the government to justify the restriction on the basis of section 1 of the Charter,5 i.e. that the restriction is reasonable and demonstrably justified in a free and democratic society. Where the effect of government action is to restrict expression, the individual must demonstrate that the expression in question is related to the values underlying paragraph 2(b) of the Charter, e.g. that it relates to the pursuit of truth, social participation in the community, or individual fulfilment.
I turn to the first part of the Irwin Toy test"is the applicant's conduct "expression" within the meaning of paragraph 2(b )? The applicant argues that, because the basis for the certificate is only his involvement in fundraising, recruiting and organizing for the BKI, there is no nexus between his expression and any specific actions of the BKI that could be considered to be terrorism. The premise of this argument is that even if the BKI is engaged in terrorism, the applicant's activities are benign and are entitled to Charter protection.
I have great difficulty with the applicant's suggestion that his activities, although themselves non-violent, are "expression" within the meaning of paragraph 2(b ) of the Charter when he carries them out on behalf of an organization that there are reasonable grounds to believe is engaged in terrorism or subversion of a state by force. For purposes of this argument, the applicant seems to want his activities in Canada to be considered in isolation without regard to the nature of the organization of which he is alleged to be a member.
For the Court to turn a blind eye to the nature of the organization and treat the applicant as if he is fundraising, recruiting and organizing for a socially benign organization, would be artificial. Fundraising, recruiting and organizing may be constitutionally protected forms of expression when undertaken in support of many or most non-violent organizations. However, the same cannot be said when such activities are undertaken in support and furtherance of terrorism, which I find is not a constitutionally protected form of expression. In Irwin Toy, supra, the majority (Dickson C.J., Lamer and Wilson JJ.,) state at page 970:
While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen.
Terrorists cannot invoke freedom of expression as justification for the violent activities in which they are involved; nor may individuals who aid and abet organizations engaged in terrorism in the way the applicant is alleged to assist the BKI.
I now consider the second test under Irwin Toy, supra. Even if the applicant's activities could be characterized as expression, which I doubt, the applicant would not, in my opinion, be entitled to the protection of paragraph 2(b). This test requires the Court to consider whether it is the purpose or the effect of the government activity which limits expression. The purpose of the certificate is to enable the government to commence a process which may result in the removal of a person who is a threat to the security or interests of Canada, to protect the lives or safety of persons in Canada and to protect sensitive security and criminal intelligence information (see section 38.1 [as enacted by S.C. 1992, c. 49, s. 28] of the Immigration Act, infra). This is immigration legislation dealing with the admissibility of persons to Canada. It is not legislation directed at expression as such.
In this case it is the effect, rather than the purpose, of the government action that limits expression and the applicant must therefore demonstrate that his expression is related to the values underlying paragraph 2(b). Those values are, in the words of the Supreme Court in Irwin Toy, supra, at page 976:
. . . (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfilement and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.
Although I do not have the benefit of extensive argument, it seems part of the applicant's position is that, at this stage, it has not been determined that the BKI is engaged in terrorism. There is merely the Ministers' opinion that there are reasonable grounds to believe that the BKI is such an organization. However, it is not for the Ministers to show that the applicant's alleged expression should not be protected. The onus only shifts to the Ministers once the applicant has demonstrated a violation of paragraph 2(b). Under paragraph 2(b), it is incumbent upon the applicant to demonstrate that his activities promote one of the principles and values underlying the freedom of expression. He has advanced no such evidence in this proceeding. Specifically, he has advanced no evidence about his involvement, if any, with the BKI. Nor does he address the question of whether the activities alleged against him are not in furtherance of terrorism but are related to a principle underlying freedom of expression. His bare assertions that he is not a terrorist or that he is not involved in the subversion of a government by force and his submission in argument that the BKI is not a terrorist organization do not satisfy his onus under paragraph 2(b).
I express considerable doubt, on the basis of these brief considerations, that the applicant has made out a serious issue to be tried with respect to his freedom of expression.
Similarly, I doubt that the applicant has raised a serious issue with respect to freedom of association, under paragraph 2(d) of the Charter. Irwin Toy, supra, states that violent forms of expression such as murder do not fall within the sphere of constitutionally protected expression under paragraph 2(b). I cannot see how there would be any greater protection afforded under paragraph 2(d) to an association that exists to commit acts of violence.
While I accept the proposition that with paragraph 2(d), the Court should not generally look to the nature of the organization to determine whether the association is constitutionally protected, (see Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (T.D.)), I think the same exception that exists under paragraph 2(b), i.e. that violence does not warrant constitutional protection as a form of expression, must also apply to persons associating in the commission of violent activities such as murder or terrorism. Indeed, in my view, the contrary position would be tantamount to saying that, although murder is not constitutionally protected expression, a conspiracy to commit murder would be constitutionally protected association. Such a proposition is untenable. Therefore, with respect to freedom of association, I doubt the applicant has made out a serious issue to be tried.
I need go no further than expressing my reservations that the applicant has not made out any serious issue to be tried because, for the reasons that follow, the balance of inconvenience favours the Ministers.
As to the applicant's irreparable harm, the evidence is that the applicant operates a trucking business with seven employees. He maintains that, without his presence, the business cannot survive. There is no process for compensation in the event he has been wrongly detained. I accept that the applicant's detention causes him irreparable harm.
I turn then to the balance of inconvenience. With respect to irreparable harm to the Ministers, according to RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, this consideration is to be assessed in a weighing of the balance of inconvenience. At page 346 Cory and Sopinka JJ. state:
In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.
A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint sought. To do so would in effect require judicial inquiry into whether the government is governing well, since it implies the possibility that the government action does not have the effect of promoting the public interest and that the restraint of the action would therefore not harm the public interest. The Charter does not give the courts a licence to evaluate the effectiveness of government action, but only to restrain it where it encroaches upon fundamental rights.
In this case, the Immigration Act charges the Ministers with protecting the public interest. The signing, filing and referring of the certificate respecting the applicant was pursuant to the duty imposed on the Ministers by the Act. The purpose of the provisions under which the Ministers have acted in this case is set forth in section 38.1 of the Immigration Act.
38.1 Recognizing that persons who are not Canadian citizens or permanent residents have no right to come into or remain in Canada and that permanent residents have only a qualified right to do so, and recognizing the necessity of cooperation with foreign governments and agencies in maintaining national security, the purposes of sections 39 to 40.2 are
(a) to enable the Government of Canada to fulfil its duty to remove persons who constitute a threat to the security or interests of Canada or whose presence endangers the lives or safety of persons in Canada;
(b) to ensure the protection of sensitive security and criminal intelligence information; and
(c) to provide a process for the expeditious removal of persons found to be members of an inadmissible class referred to in section 39 or 40.1.
No evidence was tendered that would rebut the presumption that the objectives of paragraphs 19(1)(e) and (f), as incorporated in section 40.1, and as applied by the Ministers, are in the public interest. According to RJR—MacDonald, supra, at this point, the Court should assume that irreparable harm to the public interest would result from the restraint of government action, i.e. the legislation or the Ministers' certificate.
The Court should not, as a general rule, inquire into whether actual harm would result from the restraint sought by the applicant and the applicant has not given the Court any reason to depart from the general rule in this case. I must conclude, on the basis of the relevant provisions of the Immigration Act and the certificate issued by the Ministers, that there would be irreparable harm to the public interest from the restraint sought by the applicant.
A factor affecting the weight to be given to the government's public interest considerations is whether the case is a suspension case, where "the operation of the impugned provisions is temporarily suspended for all practical purposes," or an exemption case, where the successful litigant is effectively "exempted from the impugned legislation which, in the meanwhile, continues to operate with respect to others": Manitoba (Attorney General) v. Metropolitan Stores Ltd. , [1987] 1 S.C.R. 110, at page 135, per Beetz J.; RJR— MacDonald, supra, at page 351. In a suspension case, where the harm to the public interest is more widespread, it will be more difficult to obtain interlocutory relief.
At first blush, the present case appears to be an exemption case. The applicant is simply asking that he be exempted from application of the impugned legislation and/or the Ministers' action under the legislation. However, in general, exemption cases are limited to situations where, "the impugned provisions are . . . applicable to a relatively limited number of individuals and where no significant harm would be suffered by the public": Metropolitan Stores , supra, at page 147. In that case, Beetz. J. also observed at page 146:
The reason why exemption cases are assimilated to suspension cases is the precedential value and exemplary effect of exemption cases. Depending on the nature of the cases, to grant an exemption in the form of a stay to one litigant is often to make it difficult to refuse the same remedy to other litigants who find themselves in essentially the same situation, and to risk provoking a cascade of stays and exemptions, the sum of which make them tantamount to a suspension case.
I treat this case as a suspension case because of the risk of provoking a cascade of stays and exemptions in cases such as this and because of significant harm to the public from such exemptions. It is trite to say that the public interest at stake in national security and public safety is profound. This is equally true whether it is the legislation or the Ministers' action that is sought to be restrained.
The Court recognizes that there are public interest factors that favour the applicant. He has satisfied the Court that his business, employing seven other people, is at serious risk. Notwithstanding that there is a public interest in the continuation of the applicant's business and employment of his employees, this public interest is clearly outweighed by the public interest that favours the continued application of paragraphs 19(1)(e) and (f) and the Ministers' certificate.
Furthermore, the scheme of section 40.1 is to have an expedited judicial review of the reasonableness of the Ministers' certificate. An expedited reasonableness hearing will minimize the harm to the applicant. The reasonableness hearing in this case is scheduled for May 7 and 8, 1998 and applicant's original counsel represented to the Court that the hearing could be conducted within that time frame. An expedited and efficient reasonableness hearing is the most effective means of minimizing harm to the applicant while recognizing the public interest in national security and the protection of public safety. The balance of inconvenience favours the Ministers.
The application for interim relief is dismissed.
1 S. 18.2 of the Federal Court Act provides:
18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application.
2 The relevant portions of s. 40.1 are:
40.1 (1) Notwithstanding anything in this Act, where the Minister and the Solicitor General of Canada are of the opinion, based on security or criminal intelligence reports received and considered by them, that a person, other than a Canadian citizen or permanent resident, is a person described in subparagraph 19(1)(c.1)(ii), paragraph 19(1)(c.2), (d), (e), (f), (g), (j), (k) or (l) or subparagraph 19(2)(a.1)(ii), they may sign and file a certificate to that effect with an immigration officer, a senior immigration officer or an adjudicator.
(2) Where a certificate is signed and filed in accordance with subsection (1),
(a) an inquiry under this Act concerning the person in respect of whom the certificate is filed shall not be commenced, or if commenced shall be adjourned, until the determination referred to in paragraph (4)(d) has been made; and
(b) a senior immigration officer or an adjudicator shall, notwithstanding section 23 or 103 but subject to subsection (7.1), detain or make an order to detain the person named in the certificate until the making of the determination.
(3) Where a certificate referred to in subsection (1) is filed in accordance with that subsection, the Minister shall
(a) forthwith cause a copy of the certificate to be referred to the Federal Court for a determination as to whether the certificate should be quashed; and
(b) within three days after the certificate has been filed, cause a notice to be sent to the person named in the certificate informing the person that a certificate under this section has been filed and that following a reference to the Federal Court a deportation order may be made against the person.
(4) Where a certificate is referred to the Federal Court pursuant to subsection (3), the Chief Justice of that Court or a judge of that Court designated by the Chief Justice for the purposes of this section shall
(a) examine within seven days, in camera, the security or criminal intelligence reports considered by the Minister and the Solicitor General and hear any other evidence or information that may be presented by or on behalf of those Ministers and may, on the request of the Minister or the Solicitor General, hear all or part of such evidence or information in the absence of the person named in the certificate and any counsel representing the person where, in the opinion of the Chief Justice or the designated judge, as the case may be, the evidence or information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(b) provide the person named in the certificate with a statement summarizing such information available to the Chief Justice or the designated judge, as the case may be, as will enable the person to be reasonably informed of the circumstances giving rise to the issue of the certificate, having regard to whether, in the opinion of the Chief Justice or the designated judge, as the case may be, the information should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons;
(c) provide the person named in the certificate with a reasonable opportunity to be heard;
(d) determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to the Chief Justice or the designated judge, as the case may be, and, if found not to be reasonable, quash the certificate; and
(e) notify the Minister, the Solicitor General and the person named in the certificate of the determination made pursuant to paragraph (d).
3 19. (1) No person shall be granted admission who is a member of any of the following classes:
. . .
(e) persons who there are reasonable grounds to believe
. . .
(ii) will, while in Canada, engage in or instigate the subversion by force of any government,
. . .
(iv) are members of an organization that there are reasonable grounds to believe will
. . .
(B) engage in or instigate the subversion by force of any government, or
(C) engage in terrorism;
. . .
(f) persons who there are reasonable grounds to believe
. . .
(ii) have engaged in terrorism, or
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
. . .
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
4 2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
. . .
(d) freedom of association.
5 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.