A-265-98
Manickavasagam Suresh (Appellant)
v.
The Minister of Citizenship and Immigration and the Solicitor General of Canada (Respondents)
Indexed as: Sureshv. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Strayer, McDonald JJ.A. and Henry D.J."Toronto, June 18; Ottawa, July 21, 1998.
Federal Court jurisdiction — Trial Division — Appeal from Immigration Act, s. 40.1(9) order releasing appellant from detention on ground conditions therein infringing Charter guaranteed rights of freedom of expression, association — Appellant not raising constitutional issues before Trial Judge designated under s. 40.1(8) — Appeal allowed to extent matter remitted to designated F.C.T.D. Judge — Under s. 40.1(8) having jurisdiction, compelled to consider constitutionality of terms of any order made under s. 40.1(9) — In best position to do so, having heard witnesses, determined credibility, having full factual record — Also has remedy available: appropriate wording of release conditions — As Judge issuing release order having continuing jurisdiction as to impact — Also in best position to determine whether appellant's conduct amounting to waiver of Charter attack.
Constitutional law — Charter of Rights — Fundamental freedoms — Appeal from Immigration Act, s. 40.1(9) order releasing appellant from detention on ground conditions therein infringing rights of freedom of expression, association — Appellant not raising constitutional issues before F.C.T.D. Judge designated under s. 40.1(8) — Matter remitted to designated Judge — In best position to rule on Charter issues, including whether terms of order can be upheld under s. 1, as heard witnesses, determined credibility, having full factual record before him/her — As judge issuing release order, having continuing jurisdiction as to impact, including constitutionality of order — Also in best position to decide whether appellant waived any future right to have order reviewed on constitutional grounds.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Appeal from Immigration Act, s. 40.1(9) order releasing appellant from detention on ground conditions therein infringing Charter guaranteed rights of freedom of expression, association — Appellant inadmissible as person reasonable grounds to believe engaged in terrorism — Incarcerated almost two years when removal order issued — Ontario Court, General Division injunction precluding removal — F.C.T.D. Judge allowing s. 40.1(8) application for release on conditions — Appellant not raising constitutional issues before Trial Division Judge — Appeal allowed to extent matter remitted to designated F.C.T.D. Judge — Constitutional concerns properly raised before designated Judge.
This was an appeal from an order made pursuant to Immigration Act, subsection 40.1(9) releasing the appellant from detention on the ground that some of the conditions imposed therein infringed his rights to freedom of expression and association as guaranteed by the Canadian Charter of Rights and Freedoms.
The appellant is believed to be a member of a terrorist organization. A ministerial security certificate concluded that he was inadmissible to Canada because he was a person described in Immigration Act, clauses 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B) i.e. a person who there are reasonable grounds to believe has engaged in terrorism or is a member of such an organization. At a hearing held pursuant to paragraph 40.1(4)(d), the Trial Judge upheld the reasonableness of that certificate. The appellant was arrested in 1995 pursuant to paragraph 40.1(2)(b) and has remained incarcerated pending possible removal from Canada. On September 17, 1997, the appellant was ordered removed from Canada, but an injunction issued by the Ontario Court, General Division prevented his removal. After 120 days had elapsed since the making of the removal order, the appellant applied for an order releasing him from detention pursuant to subsection 40.1(8). The designated Trial Judge allowed the application as he was satisfied that, because of the injunction the appellant would not be removed from Canada within a reasonable time, and subject to the strict conditions he placed on the appellant's release, his release would not be injurious to national security or public safety. Although the appellant and his solicitor agreed to all of the conditions, they reserved the right to attack the order on constitutional grounds. The appellant did not raise the constitutional issues before the Trial Judge because previous decisions of the Trial Division stated that a judge hearing these cases lacks jurisdiction to entertain constitutional arguments.
The issue was whether a designated judge under Immigration Act, subsections 40.1(8) and (9) has jurisdiction to consider any constitutional issues that arise from an order made by that judge pursuant to subsection 40.1(9).
Held, the appeal should be allowed to the extent that the matter should be remitted to the designated Trial Division Judge to determine whether the conditions imposed by the release order are in accordance with the Charter.
The constitutional concerns should have been raised at the trial level. A designated judge hearing a subsection 40.1(8) application is in the best position to rule on any Charter issues because he or she hears the witnesses, determines credibility with respect to those witnesses, and has a full factual record before him or her, which is especially vital to the Charter, section 1 issue.
Nothing in the Act limits a designated judge on jurisdictional grounds from considering constitutional issues on a subsection 40.1(8) application. A designated judge under subsection 40.1(8) has jurisdiction to entertain Charter arguments with respect to the constitutionality of the terms of any order made under subsection 40.1(9). Indeed, a designated judge is compelled to consider the constitutionality of any order he or she makes pursuant to this subsection. Unlike a proceeding under subsection 40.1(4) he has the remedy available: namely, the appropriate wording of the release conditions. In this case the designated judge did not wrongly refuse to exercise that jurisdiction: he was never asked to do so by the appellant. As a judge issuing a release order he can exercise a continuing jurisdiction as to its impact, including considering the appellant's argument that in its operation the order is unconstitutionally curtailing his liberties. The designated Judge is also in the best position to decide whether the events that passed before him amounted to a waiver by the appellant of any future right to have the order itself reviewed on constitutional grounds.
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], s. 1.
Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(e)(iv)(C) (as am. by S.C. 1992, c. 49, s. 11), (f)(iii)(B) (as am. idem), 40.1(2)(b) (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), (4)(d) (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4), (8) (as enacted idem), (9) (as enacted idem).
cases judicially considered
distinguished:
Re Baroud (1995), 98 F.T.R. 99 (F.C.T.D.); Suresh v. Canada (1996), 34 C.R.R. (2d) 337; 105 F.T.R. 299 (F.C.T.D).
referred to:
Suresh (Re), [1997] F.C.J. No. 1537 (T.D.) (QL); Vickery v. Nova Scotia Surpeme Court (Prothonotary), [1991] 1 S.C.R. 671; (1991), 104 N.S.R. (2d) 181; 283 A.P.R. 181; 64 C.C.C. (3d) 65; 124 N.R. 95; Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 616 (T.D.).
APPEAL from an order (Suresh (Re), [1998] F.C.J. No. 385 (T.D.) (QL)) releasing the appellant from detention on the grounds that some of the conditions imposed therein infringed his Charter guaranteed rights to freedom of expression and association. Appeal allowed to the extent that the matter was remitted to the designated Trial Division Judge for determination of the constitutional issues.
counsel:
Barbara Jackman and Ron Poulton for appellant.
Jim W. Leising and Diane Dagenais for respondents.
solicitors:
Jackman, Waldman & Associates, Toronto, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
McDonald J.A.: The issue that arises from the facts of this case is whether a designated judge under subsections 40.1(8) and (9) of the Immigration Act [R.S.C., 1985, c. I-2 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4)] (the Act) has jurisdiction to hear any constitutional issues that arise from an order made by that judge pursuant to subsection 40.1(9) of the Act.
The appellant is believed to be a member of the Liberation Tigers of Tamil Eelam, an organization that has purportedly committed numerous acts of terrorism. He arrived in Canada on October 5, 1990 applied for and was granted Convention Refugee status by the Refugee Board on April 11, 1991. He was detained on October 18, 1995 pursuant to a security certificate issued by the Minister of Citizenship and Immigration and the Solicitor General (the respondent Ministers). The ministerial certificate issued concluded that Suresh was inadmissible to Canada because he was a person described in clauses 19(1)(e)(iv)(C) [as am. by S.C. 1992, c. 49, s. 11] and 19(1)(f)(iii)(B) [as am. idem] of the Act (a person who there are reasonable grounds to believe has engaged in terrorism or is a member of such an organization.)1
A hearing was held pursuant to paragraph 40.1(4)(d) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4] of the Act to consider whether the certificate filed by the respondent Ministers was reasonable. On August 29, 1997 [reasons for order dated 14/11/97 [1997] F.C.J. No. 1537 (T.D.) (QL)] the Trial Judge upheld the reasonableness of the certificate finding that there were reasonable grounds to believe that Suresh was and is a member of the Liberation Tigers of Tamil Eelam (LTTE). Specifically, the Trial Judge concluded that the appellant partook in LTTE activities, such as, the posting of posters, collecting food and being a member of the LTTE executive. He also found that the appellant had travelled to various countries, including Canada, to head the World Tamil Movement and that this was done at the request of the LTTE. With respect to his refugee status, the Trial Judge concluded that the appellant had lied under oath before the Immigration and Refugee Board and wilfully misrepresented the facts.
The appellant was arrested on October 18, 1995 pursuant to paragraph 40.1(2)(b) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31] of the Act and remained incarcerated throughout the proceedings under subsection 40.1(4) and thereafter, pending possible removal from Canada. On September 17, 1997, the appellant was ordered removed from Canada. However, an injunction issued by Mr. Justice Lane of the Ontario Court, General Division prevented the appellant's removal from Canada. After 120 days elapsed following the making of the removal order he was entitled to file an application for an order releasing him from detention pursuant to subsection 40.1(8) of the Act, which he did on December 23, 1997. Subsections 40.1(8) and (9) provide:
40.1 . . .
(8) Where a person is detained under subsection (7) and is not removed from Canada within 120 days after the making of the removal order relating to that person, the person may apply to the Chief Justice of the Federal Court or to a judge of the Federal Court designated by the Chief Justice for the purposes of this section for an order under subsection (9).
(9) On an application referred to in subsection (8) the Chief Justice or the designated judge may, subject to such terms and conditions as the Chief Justice or designated judge deems appropriate, order that the person be released from detention if the Chief Justice or designated Judge is satisfied that
(a) the person will not be removed from Canada within a reasonable time; and
(b) the person's release would not be injurious to national security or to the safety of persons.
The Trial Judge allowed the application under subsections 40.1(8) and (9) [Suresh (Re), [1998] F.C.J. No. 385 (T.D.) (QL)] as he was satisfied that because of the injunction issued by Justice Lane the appellant would not be removed from Canada within a reasonable period and that, subject to the strict conditions he placed on the appellant's release, his release would not be injurious to national security or to public safety. The following conditions were attached to the appellant's release:
1. The Applicant, Manickavasagam Suresh, or persons for and on his behalf but not directly or indirectly by the LTTE, shall deposit with the Respondent a sum of Forty Thousand Dollars cash ($40,000), which sum shall remain with the Respondent for the Government of Canada until such time as the Government of Canada removes the Applicant, Suresh, from Canada, at which time the money, with interest, shall be returned to the person or persons who have deposited the said moneys.
2. A performance bond in the sum on One Hundred and Fifty Thousand Dollars ($150,000) shall be deposited by Xavier Noble Arasaratnam for the benefit of the Government of Canada and Mr. Arasaratnam shall give as security the home where he resides, 6136 Silken Lauman Way, Mississauga, Ontario, to the Government of Canada.
3. Suresh, while out of detention, shall report once per week to the Immigration Reporting Centre at 60 Richmond Street East, Toronto, Ontario on a day and at a time as determined by a representative of the Respondent.
4. Suresh shall reside at the residence of Xavier Noble Arasaratnam at 6136 Silken Lauman Way, Mississauga, Ontario L5V 182.
5. In the event that Mr. Arasaratnam should, for whatever reason, change his address, Suresh must advise the CIC in advance and obtain the Respondent's permission to change his residence.
6. This does not preclude occasional overnight visits with Ramalashmy Jayavaman Sivasway at 5 Greystone Wall, Apartment 1711, Toronto.
7. Suresh, during the time of his release shall keep the peace and be of good behaviour.
8. Suresh shall remain within Fifty (50) kilometres of the Toronto City limits and cannot go outside this area without permission of the CIC.
9. Suresh shall not have direct or indirect, except through his solicitor, Ms. Jackman or Ms. Jackman's employees (her secretary, paralegal or articling student) and this solely for the preparation of court proceedings or in an effort to locate a third country, with any executive members of the WTM, or with any of the WTM's employees, and affiliated groups, such as the WTA in Montreal, ETA B.C. Vancouver, WTCC Ottawa, the executives and employees of FACT or TESC and is not for any reason to visit the offices of these organizations.
10. Suresh shall have no direct or indirect contact, except through his solicitor, with LTTE members, officials, executives, representatives, spokespersons, or coordinators, including individuals in any way linked to the LTTE offices outside Canada; as for example, the Tamil Information Centre in London, England, LTTE's International Secretariat in London, England, or Paris, France, or in any other country.
11. Suresh shall not be involved directly or indirectly in any activities, including protests, demonstrations or rallies of any kind or for any cause related to or not related to the LTTE, WTM. WTA Montreal, ETA B.C. Vancouver, or WTCC, Ottawa.
12. Suresh shall surrender to Canadian Immigration authorities his passport and all other travel documents while out of detention (if he has any such documents).
13. If Suresh agrees in writing to abide by these terms and conditions while out of detention, then he is to be released from detention.
All of the aforementioned conditions were agreed to by the appellant and his solicitor, Mrs. Barbara Jackman. Indeed, Mrs. Jackman appears to have taken an active role in the formulation of the conditions surrounding the appellant's release. He now appeals that order on the grounds that paragraphs 9, 10 and 11 of the said order infringe his and other individuals rights to freedom of expression and association as guaranteed by the 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]]. The appellant did not voice his objections to the terms of the order before the Trial Judge, nonetheless, Mrs. Jackman reserved the right to attack the order on constitutional grounds. There is some dispute, however, over whether her reservation applies to the constitutionality of the provisions of the Act itself or whether it applies to the actual terms and conditions of the order.
The Minister argues that the appellant has waived his Charter rights by consenting in testimony and in writing to the imposition of strict conditions for his release from detention. The Minister claims that had the appellant wished to challenge the order he should have done so before the Trial Judge. The appellant claims to have reserved the right to attack the terms of the order and specifically did not raise the constitutional issues with the Trial Judge as previous decisions rendered at the trial level state that a judge hearing these cases lacks jurisdiction to hear constitutional arguments. The decisions cited by the appellant as standing for this proposition are: Suresh v. Canada (1996), 34 C.R.R. (2d) 337 (F.C.T.D.) (a decision of Cullen J.); Re Baroud (1995), 98 F.T.R. 99 (F.C.T.D.) (a decision of Denault J.); and Singh v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 616 (T.D.) (a decision of Rothstein J.).
This Court as an appeal court finds itself in the awkward position of being the first body to hear the constitutional arguments. As an appeal court we lack the advantage of having heard the witnesses (which in this case involved 50 days of hearings on the reasonableness issue plus further evidence received on the application for release, some of which evidence was received ex parte and in camera). We are not in a position for determining issues of credibility with respect to these witnesses and we do not have a full factual record before us. A full factual record is especially vital to the section 1 Charter issue. For these reasons, and for the reasons to be elaborated on below, I am of the view that an appeal court should not be the court of first instance in a subsection 40.1(8) application to hear Charter arguments concerning the terms of an order rendered pursuant to this subsection. In my view, the appropriate procedure to follow is to raise any constitutional concerns at the trial level.2 Clearly a designated judge hearing a subsection 40.1(8) application is in the best position to rule on any Charter issues. Indeed, a designated judge is compelled to consider whether an order he or she makes has any constitutional implications. If the designated judge decides in the first instance that prima facie a Charter right might be infringed by the terms of an order, he is in the best position, after hearing all the evidence, to determine whether, given security concerns, the terms of the order can be upheld under section 1 of the Charter. In doing so he may have to consider whether the application of Charter requirements to an order made under subsection 40.1(9) involved a determination of the "constitutional applicability" of that subsection, thus giving rise to the notice requirements of section 57 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 19)]. This matter was not argued before us.
With respect to the jurisdiction issue, I am convinced that there is nothing in the Act limiting a designated judge on jurisdictional grounds from considering constitutional issues on a subsection 40.1(8) application. The cases cited by the appellant as standing for the proposition that constitutional issues can not be considered are, in any event, easily distinguished on their facts.
In Baroud, supra, Denault J. was called on to consider under paragraph 40.1(4)(d) of the Act whether a security certificate signed and filed by the Solicitor General of Canada and the Minister of Immigration and Citizenship was reasonable. In reaching his decision that the certificate was reasonable, he stated at page 108: "I have an obligation to enforce the applicable legislation and, in the context of this hearing, it is not my role to determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms ." In Suresh , supra, Cullen J. considered the very same provision of the Immigration Act. In discussing the issue of jurisdiction he stated [at page 340]:
At issue is whether Mr. Justice Teitelbaum, sitting as the designated judge, has jurisdiction to hear the applicant's Charter arguments and, if required, issue a Charter remedy.
Earlier decisions of this court determined that a designated judge was without jurisdiction to hear Charter issues. In the case of Re Shandi . . . , I stated:
I ruled that the constitutionality of sections of the Immigration Act could not be challenged at the hearing but that I would accept arguments based on the possibility that the Charter rights of the applicant had not been met. This latter pronouncement by me was in error and conformed with the dissenting judgment of Lamer J. of the Supreme Court of Canada in United States v. Allard . . . but not with the majority decision of McIntyre J. in R. v. Mills . . . .
In Re Baroud . . . Denault J found that the role of the court was to enforce the applicable legislation and, in the context of a s. 40.1 hearing, it was not the role of the Court to "determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms ." However, in both of these cases, the respondent ministers argued that the court was without jurisdiction and the issue was not otherwise fully explored. While I do not agree with the applicant that these cases were wrongly decided, I was willing to consider the applicant's arguments.
After considering the jurisdiction issue, Cullen J. concluded that provided the designated judge has jurisdiction over the whole of the matter before him or her"the parties, the subject-matter and the remedy sought"the judge has jurisdiction to hear constitutional arguments. He found that because paragraph 40.1(4)(d ) of the Act only gave the designated judge jurisdiction to consider the reasonableness of the certificate, constitutional arguments could not be entertained.
I would note that a prominent factor giving rise to Cullen J.'s decision in Suresh was that subsection 40.1(6) [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4] of the Act sets out that a determination under paragraph 40.1(4)(d) is not subject to appeal or review by any court.3 There is no such corresponding limit pertaining to subsection 40.1(8) of the Act. Further, both Suresh and Baroud were concerned with attacking the constitutionality of an entire section of the Act (for instance, in Suresh, clauses 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B)) whereas in the case at bar, we are concerned only with the constitutionality of the terms of an order made by the designated judge. These cases are, therefore, distinguishable on the ground that they arose under a different section of the Act which limits any right of appeal and on the ground that they were concerned with entirely different issues.
Thus, I find that a designated judge under subsection 40.1(8) of the Act has jurisdiction to entertain Charter arguments with respect to the constitutionality of the terms of any order made under subsection 40.1(9) of the Act. Indeed, a designated judge is compelled to consider the constitutionality of any order he or she makes pursuant to this subsection. Unlike a proceeding under subsection 40.1(4) he has the remedy available: namely, the appropriate wording of the release conditions. It must be emphasized that in this case the designated judge did not wrongly refuse to exercise that jurisdiction: he was never asked by the appellant. Having found that the designated Trial Judge had jurisdiction to consider the Charter issues, I am of the view that the most appropriate course of action is to send the Charter issues back to him for consideration as he has the benefit of being the only one to have before him a full factual record and of having heard any relevant testimony on this issue. As a judge issuing a release order he can exercise a continuing jurisdiction as to its impact, including considering the appellant's argument that in its operation the order is unconstitutionally curtailing his liberties. He is also in the best position to decide whether the events that passed before him amounted to a waiver by the appellant of any future right to have the order itself reviewed on constitutional grounds.
I would note, however, that the word "activities" and the phrase "related or not related to" as found in paragraph 11 are not defined in the order and thus appear to be excessively broad. Taken literally, paragraph 11 would preclude the appellant from even enjoying a game of golf. The words "or not related to" should, therefore, be deleted from paragraph 11. The designated Trial Judge should also provide a definition of "activity" for the purposes of clarity since the term is broad and it will be necessary for the appellant to determine clearly whether any actions of his will result in a breach of one of the imposed conditions.
I would allow the appeal to the extent of remitting the matter back to the designated Trial Division Judge to determine whether or not the conditions imposed by the release order are in accordance with the Charter. In the interim, the release order will remain in place to ensure the applicant does not return to jail, unless altered by the designated judge. The words "or not related" should be deleted from paragraph 11 of the order and the omitted word "contact" added after indirect in line 1 of paragraph 9 of the conditions (as agreed to by the respondent). There will be no order as to costs.
Strayer J.A.: I agree.
Henry D.J.: I agree.
1 These sections provide as follows:
19. (1) . . .
(e) persons who there are reasonable grounds to believe
. . .
(iv) are members of an organization that there are reasonable grounds to believe will
. . .
(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;
2 See for example Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, at p. 679.
3 This section provides: "A determination under paragraph (4)(d ) is not subject to appeal or review by any court."