Date: 20040123
Docket: DES-3-03
Citation: 2004 FC 107
Ottawa, Ontario, the 23rd day of January, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN THE MATTER CONCERNING a
certificate under subsection 77(1) of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the IRPA);
IN THE MATTER CONCERNING the
referral of this certificate to the Federal Court
of Canada under subsection 77(1) and sections
78 and 80 of the IRPA;
IN THE MATTER CONCERNING the warrant
for arrest and detention and the review of the
reasons that may justify continued detention
under subsections 83(2) and 83(3) of the IRPA;
AND IN THE MATTER CONCERNING
Mr. Adil Charkaoui
REASONS FOR ORDER AND ORDER
[1] In the wake of the initial review of detention, which resulted in the order for continued detention, upon which judgment was delivered on July 15, 2003 (see Charkaoui (Re), [2003] F.C.J. No. 1119, hereinafter Charkaoui, July 15, 2003), Adil Charkaoui (Mr. Charkaoui) reappeared on January 12, 2004 pursuant to subsection 83(2) of the IRPA. During this appearance, Mr. Charkaoui asked to be released on bail and subject to conditions (at the discretion of the Court). Per contra, the Ministers requested the continuation of the detention based on the argument that the evidence as adduced by Mr. Charkaoui completely failed to alter the conclusions in Chakaoui, July 15, 2003.
[2] At the suggestion of the parties and with the agreement of the Court, the evidence presented during the hearing of the initial review of the continued detention is an integral part of this review.
[3] Briefly, on the first review the evidence disclosed to the public by the Ministers included the testimony of an officer of the Canadian Security Intelligence Service, who explained the al-Quaeda terrorist network led by Osama Bin Laden, and a summary of the evidence heard by the Court solely in the presence of counsel for the Ministers and their representatives, with a series of documents filed in support. On the second review, the Ministers presented no additional evidence.
[4] The evidence adduced by Mr. Charkaoui's counsel on the first review included 14 affidavits and the cross-examination of seven of the affiants. To facilitate the understanding of the present decision, I refer the reader to the summary of the evidence, including that of the Ministers, in Charkaoui, July 15, 2003.
[5] In Charkaoui, July 15, 2003, I concluded that the Ministers' evidence is very serious and could be rebutted if Mr. Charkaoui adduced some evidence challenging that of the Ministers (see paragraph 54, Charkaoui, July 15, 2003). I also informed Mr. Charkaoui in that decision that the evidence he adduced had not satisfactorily addressed three of the Court's concerns:
- Mr. Charkaoui's life from 1992 to 1995 (in Morocco) and from 1995 to 2000 (in Canada), including the trips;
- Mr. Charkaoui's trip to Pakistan from February to July, 1998;
- Mr. Charkaoui's contacts with, inter alia, Abousfiane Abdelrazik, Samir Ait Mohamed, Karim Saïd Atmani, Raouf Hannachi and Abdellah Ouzghar; (see paragraph 63 in Charkaoui, July 15, 2003).
The evidence adduced by Mr. Charkaoui on July 15, 2003 was incomplete and did not respond to all of the allegations made by the Ministers. I therefore concluded, pursuant to subsection 83(3) of the IRPA, that Mr. Charkaoui was a danger to national security or to the safety of any person, or that he would attempt to avoid a proceeding and/or removal.
The respondent, through his counsel, asked that I release him on conditions and bail. Since I have reached the conclusion that the danger still remains, which in itself is just cause, I need not contemplate this possibility at this stage of the proceedings. The danger remains and it is not a conditional release and bail that will eliminate this danger at this time. (Charkaoui, July 15, 2003, paragraph 66)
[6] On January 12, 2004, at the second review of the continued detention, Mr. Charkaoui filed ten affidavits, some of which included documentation (specifically, some newspaper articles discussing the reliability and credibility of Ahmed Ressam and Abou Zubaida, two persons who identified Mr. Charkaoui as an individual they had met in Afghanistan in 1998 in a training camp of the al-Quaeda movement and whom they knew under the name of "Zubeir Al Maghrebi").
[7] All of the affidavits submitted by Mr. Charkaoui have in common the fact that each of the affiants offers a monetary contribution toward bail for his conditional release (totalling $25,000 on the first review and $50,000 on this one). Should he be released from detention on bail, some of these affiants explain, they will supervise Mr. Charkaoui to ensure that he complies with the conditions of his release.
[8] However, I note that some four of the ten affiants do not know Mr. Charkaoui and that five of these ten affiants have previously signed affidavits or testified during the first review.
[9] These affidavits do not address any of the three concerns (mentioned in paragraph 5 of this judgment) that could enlighten the Court concerning the danger that Mr. Charkaoui might constitute to national security or to the safety of any person, or the risk that he might fail to appear at a proceeding.
[10] Mr. Charkaoui alleges that under Division 6 of the IRPA and sections 244 et seq. of the Immigration and Refugee Protection Regulations (IRPR), the judge must consider release (albeit on bail and subject to stringent conditions) with a view to neutralizing the risk of danger to the greatest possible degree.
[11] On a review of detention, section 85 of the IRPA stipulates that sections 82 to 84 prevail over the provisions of Division 6. Subsection 83(3) of the IRPA is clear: the person concerned shall remain in detention if there is evidence that he continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
[12] Considering the additional evidence adduced on January 12, 2004, I am of the opinion that the danger must be assessed and that conditional release cannot be contemplated unless there is sufficient evidence that the danger is reduced or does not exist, and that Mr. Charkaoui will continue to submit to the proceeding.
[13] In the case of the present review, Mr. Charkaoui has a burden of proof to bear, for I have previously found that the Ministers' evidence concerning the danger is serious (see paragraphs 36 and 54 in Charkaoui, July 15, 2003), and I find that this is the same situation today. The Federal Court of Appeal, at paragraph 16 of M.C.I. v. Thanabalasingham, [2004] F.C.J. No. 15, 2004 FCA 4, explains the burden of proof on a review of detention in the context of applying Division 6 of the Act, as follows:
The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention.
This explanation of the Court of Appeal applies equally on a review of detention under subsections 83(2) and 83(3) of the IRPA, when assessing whether there is a danger or not and the possibility of a conditional release on bail.
[14] In order to facilitate the task for Mr. Charkaoui, I indicated in Charkaoui, July 15, 2003 the Court's concerns about the danger to national security. However, the additional evidence presented to the Court does not address these concerns and essentially includes an increase in the amount of the bail, an undertaking by some affiants to ensure that Mr. Charkaoui complies with the conditions of release, and a questioning of the reliability of the information communicated to the Ministers by Mr. Ressam and Mr. Zubaida.
[15] Mr. Charkaoui's counsel explained the decision not to adduce evidence pertaining to these concerns; such evidence, they said, would go to the very substance of the litigation, i.e. would affect the issue of the reasonableness of the certificate, and should not be presented at the stage of a review of the detention. They also argued that there had been an appeal of Charkaoui, July 15, 2003, and since the appeal was dismissed (on the ground that there is no appeal from a decision concerning detention), an application for leave had been submitted to the Supreme Court of Canada.
[16] Given the presumption of validity of legislation, the scope of the allegations and the importance to Mr. Charkaoui of regaining his freedom, I am surprised at this approach. The danger to national security cannot be assessed in a factual vacuum. By avoiding an answer to the concerns raised by the Court, Mr. Charkaoui is asking that he be released irrespective of the danger that the Ministers associate with his person. When the issue is one of national security or the safety of Canadians, the designated judge has a duty to assess the danger that is posed by a person concerned in light of all the available evidence.
[17] In the case at bar, this task involves assessing, pursuant to subsection 83(3) of the IRPA, whether the person concerned still constitutes a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal. No decision to release on bail and subject to conditions can be made without answering the allegations of the Ministers that the person concerned is a danger.
[18] In light of the evidence presented by both parties, and even if I were to consider such conditions for Mr. Charkaoui's release as surrender of a passport, curfews, predetermined meetings, restrictions on his personal relations, a monitor indicating his whereabouts, etc., it is not my opinion at this point that these measures would be adequate to neutralize the danger to national security or to the safety of any person, or the unlikelihood that he would appear at a proceeding or for removal.
[19] National security is a special area that requires a particular approach:
Parliament has chosen standards other than the preponderance of evidence standard because this is what national security demands. Cases involving national security must be approached differently from others. In this case, the security of Canada, the safety of its citizens and the protection of its democratic system are at stake. The state must therefore use extraordinary methods of protection and inquiry, as illustrated by the schemes established by the Canadian Security Intelligence Service Act and other statutes. Situations and entities that pose a threat to national security are often difficult to detect and are designed to strike where society is most vulnerable. Attacks against national security can have tragic consequences. People who pose a danger to national security are often on a "mission" for which they are prepared to die. They are difficult to identify and their borderless networks are often difficult to infiltrate. They strike when least expected. Where national security is involved, we must do everything possible to avert catastrophe. The emphasis must be on prevention. After all, the security of the state and the public are at stake. Once certain acts are perpetrated, it could be too late. In my opinion, national security is such an important interest that its protection warrants the use of standards other than the preponderance of evidence standard. Having said this, we will see that the "reasonableness" and "reasonable grounds to believe" standards comport requirements that come close to the preponderance of evidence standard. (Charkaoui (Re), [2003], December 5, 2003, FC 1419, para. 126)
[20] I note that this case pertains to immigration law and not the area of criminal law. The appropriate approach, when the Ministers present serious evidence that the person concerned is a danger to national security or to the safety of any person, or that he is unlikely to appear at a proceeding or for removal, is to adduce any possible evidence that would allow the Court to question the Ministers' conclusion. I am unable, from the evidence adduced, to reach any conclusion other than that Mr. Charkaoui still constitutes a danger to national security or to the safety of any person, or that he is unlikely to appear at a proceeding or for removal.
[21] As to the disposition as to costs, Mr. Charkaoui's counsel has asked that I postpone it to a later date. So I am giving the parties ten days following the receipt of this decision to make their submissions to me on this matter, failing which there will be no award as to costs.
THE COURT ORDERS THAT:
Mr. Charkaoui's detention be continued, in accordance with subsection 83(3) of the IRPA until the designated judge again rules in regard to the continuation of the detention.
"Simon Noël"
Judge
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-3-03
STYLE: MCI v. ADIL CHARKAOUI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 12, 2004
REASONS: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: January 23, 2004
APPEARANCES:
Johanne Doyon
Julius Grey FOR THE APPLICANT
Luc Cadieux
Daniel Latulippe FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Doyon, Morin
Montréal, Quebec
Julius Grey
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENTS