Date: 20040428
Docket: DES-3-03
Citation: 2004 FC 624
Ottawa, Ontario, the 28th day of April 2004
PRESENT : THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN THE MATTER OF a certificate pursuant to
subsection 77(1) of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the IRPA);
IN THE MATTER OF the filing of this certificate
in the Federal Court of Canada
pursuant to subsection 77(1) and sections 78 and
80 of the IRPA;
IN THE MATTER OF the warrant for the arrest and detention
and review of the reasons justifying continued
detention pursuant to subsections 82(1)
and 83(1) and (3) of the IRPA;
IN THE MATTER OF the motion for disqualification of the
designated judge made by Adil Charkaoui (Mr. Charkaoui);
AND IN THE MATTER OF
Mr. Charkaoui
REASONS FOR ORDER AND ORDER
[1] On March 10, 2004, Mr. Charkaoui filed a motion seeking disqualification of the judge designated in this case, and it was presented on April 6, 2004.
[2] In the paragraphs below I conclude, with explanations, that the arguments of apprehension of bias and of bias made against the undersigned as the designated judge are not arguments justifying such allegations, and consequently the application for disqualification is dismissed.
A. Mr. CHARKAOUI'S ARGUMENTS
[3] Mr. Charkaoui essentially based his claim on the apprehension that the designated judge may not be completely impartial in the continuation of the ongoing proceeding and asked that he be disqualified for the following reasons:
A. the designated judge in question has already disposed of questions identical in part to those to be raised in connection with review of the detention;
B. the existence of this [TRANSLATION] "same question" means that the designated judge has already formed an opinion on one of the crucial questions which is also to be decided on the certificate;
C. if still required to decide on the reasonableness of the certificate, the designated judge already has an opinion on the [TRANSLATION] "reasonable grounds of the Ministers at the time of the arrest" (which is given at the same time as the signature of the certificate);
D. because the designated judge has already ruled on the fact that the Ministers' secret evidence established the existence of reasonable grounds to believe that Mr. Charkaoui is a danger to national security, it was argued that this amounts to a prejudice in favour of the Ministers on part of the question to be decided in future on the certificate and on the continuance of the proceeding;
E. as one or more questions to be decided in future are identical, and the question on the certificate about the applicant's rights to retain his permanent resident status in Canada is final in nature, it was alleged that with this opinion already stated there is a reasonable apprehension of bias in Mr. Charkaoui's mind that the designated judge may not be impartial on the continuance of the case, and this justifies the disqualification sought;
F. further, Mr. Charkaoui raised certain facts which taken as a whole allegedly created an apprehension of bias, or apparent bias.
B. MINISTERS' REPLY
[4] The Ministers objected to this motion and their reply essentially consisted of the following points:
A. the Ministers pointed out that the jurisdiction of the designated judge over continued detention is set out in section 83 of the IRPA, and over the reasonableness of the certificate in section 80; they maintained that this motion for disqualification is contrary to the general scheme of the IRPA and that Parliament has expressly provided that the designated judge would have jurisdiction over the continued detention of the person in question and the reasonableness of the certificate;
B. the Ministers noted that the mere fact that a judge has rendered judgment on a prior matter involving the same person did not create an apprehension of bias, and argued that Mr. Charkaoui should establish that the judge's written or verbal comments in his earlier decisions were such as to create a reasonable apprehension of bias;
C. the Ministers considered that the [TRANSLATION] "opinion" of the designated judge reflected Mr. Charkaoui's failure to present a scintilla of evidence regarding the matters identified as [TRANSLATION] "concerns" in the Charkaoui decision of July 15, 2003, 2003 F.C. 882 (hereinafter "the July 15, 2003 decision"), and that if such evidence was presented the designated judge might rule in Mr. Charkaoui's favour, whether in a rehearing on continuing the detention or at the hearing on the reasonableness of the Ministers' security certificate;
D. the Ministers adopted the conclusion that the possibility that a surety could be given clearly did not detract from the demonstration that Mr. Charkaoui is a danger to national security, and they argued that such a conclusion does not give rise to a reasonable apprehension of bias, as it is simply a statement of subsection 83(3) of the IRPA;
E. the Ministers considered that so far Mr. Charkaoui had submitted little evidence regarding the grounds cited in paragraphs 34(1)(c), (d) and (f) of the IRPA and argued that no reasonable apprehension of bias exists in the case at bar since the designated judge could not render an opinion based on the evidence presented; and
F. with supporting authorities, the Ministers noted that the mere fact of having sat in a prior proceeding or made decisions before the trial does not create a reasonable apprehension of bias.
C. APPLICATION FOR DISQUALIFICATION OF JUDGE AND PRINCIPLES
[5] For a full understanding of the concept of disqualification, it is important to identify the standard applicable to assessment of the facts of the case. As stated in R. v. S. (R.D.), [1997] 3 S.C.R. 484, (hereinafter R.v. S.), the standard is that of the informed reasonable person with knowledge of all the facts of the situation, the aim being to consider whether in such circumstances a judge is demonstrating bias or perceived bias:
The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge's conduct gives rise to a reasonable apprehension of bias: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 111, per Cory J.; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-95, per de Grandpré J. A finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence (S. (R.D.), at para. 114).
[Miglin v. Miglin, [2003] 1 S.C.R. 303, at para. 26, page 324.]
[6] In order to succeed in such an application, the supporting evidence must bring together more than just allegations of bias or perceived bias. Further, as stated in R. v. S., supra, at paragraphs 113 and 114, the evidence must be such that it establishes the existence of bias or perceived bias and the onus rests squarely on the shoulders of the person alleging its existence:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
[7] According to precedent, a judge who has already made a ruling on certain aspects of a case may again make a ruling in a proceeding arising from the same case. As indicated in R.v. Perciballi, [2001] O.C.A. 54 O.R. 356, at paragraph 21, this situation should not as such create bias or the appearance of bias:
In my view, there is no reason to interfere with the trial judge's decision on this Charter application. The mere prior involvement of the authorizing justice in an earlier proceeding does not, without convincing evidence to the contrary, displace the presumption of judicial integrity and impartiality. Hence, the bare allegation that Hamilton J. heard "prejudicial evidence" on the bail review that did not form part of the authorization package is meaningless. Trial judges routinely exclude evidence that they have heard on a voir dire, or hear confessions or guilty pleas by co-accused, and go on to preside over the trial of an accused.
[8] The presumption of integrity and judicial impartiality is such that it allows the judge to act and make rulings in circumstances where he or she has already acquired knowledge in earlier proceedings and decisions involving the same parties. As stated in Arthur v. Canada (Minister of Employment and Immigration) (C.A.), [1993] 1 F.C., at paragraph 8, this presumption may be challenged and rebutted provided the evidence underlying the disqualification is serious and unambiguous:
Where the double participation in decision-making has been on the part of a judge, the principle has not seemed to pose any great difficulty. In Nord-Deutsche Versicherungs Gesellschaft et al. v. The Queen et al., [1968] 1 Ex.C.R. 443, where the Attorney General argued that all of the judges who sat on an appeal relating to some of the principal questions in issue were debarred by natural justice from sitting on the subsequent trial, Jackett P. said (at pages 457- 458):
In my view the correct view of the matter is that which, as I understand it, was adopted by Hyde J. in Barthe v. The Queen [(1964) 41 C.R. 47], when he said that "The ability to judge a case only on the legal evidence adduced is an essential part of the judicial process". In my view, there can be no apprehension of bias on the part of the judge merely because he has, in the course of his judicial duty, expressed his conclusion as to the proper findings on the evidence before him. It is his duty, if the same issues of fact arise for determination in another case, to reach his conclusions with regard thereto on the evidence adduced in that case after giving full consideration to the submissions with regard thereto made on behalf of the parties in that case. It would be quite wrong for a judge in such a case to have regard to "personal knowledge" derived from "a recollection of the evidence" taken in the earlier cause. It is not reasonable to apprehend that there is "a real likelihood" that a judge will be so derelict in his duty as to decide one case in whole or in part on the evidence heard in an earlier case.
If I may be permitted to say so, it seems to me that the real apprehension is that the judge who hears a case in which the same issues of fact arise as have recently been decided in the same court can hardly ignore the existence of the earlier decision for he cannot be unconscious of the possibility of apparently conflicting decisions creating an atmosphere of lack of confidence in the administration of justice. I should have thought, however, that a judge who participates in both of two such matters is more likely to appreciate and explain different results flowing from different bodies of evidence or differences in presentation and argument than a judge who had no part in the earlier case. I do not say this to indicate that I have a view that the same judge should always try two such cases, but to indicate that, in my view, it is not necessarily prejudicial to the party who assumes the burden of producing a result in the second case that is apparently in conflict with the earlier decision.
[9] This rule has also been recently recognized by the Federal Court of Appeal in Ahani v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1114 at paragraph 7:
The impartiality of the Trial Judge has been challenged in this Court, but I am of the view that there is no merit in the arguments raised. Merely because the Trial Judge was involved in an earlier decision involving this appellant did not impair his ability to be impartial.
D. LEGISLATIVE AUTHORITY OF JUDGE DESIGNATED TO DECIDE REASONABLENESS OF CERTIFICATE AND CONTINUED DETENTION
[10] In adopting the IRPA, Parliament contemplated that the judge designated by the Chief Justice would be able to decide on the reasonableness of the certificate and the continued detention. The Chief Justice designates certain judges from among the Federal Court judges to perform such duties (section 76 of the IRPA). Parliament defines the notion of the designated judge and uses the word "judge" in sections 76 to 85 of the IRPA. A designated judge has a duty to examine the information and any other evidence within seven days after the referral of the certificate and prepare a summary of the circumstances giving rise to the certificate and forward it to the person concerned (paragraphs 78(a), (d) and (h) of the IRPA). He also has a duty within 48 hours of the detention to review the reasons for the continued detention, referring to the provisions of section 78 mutatis mutandis, namely the same provisions as those used to review the reasonableness of the certificate (subsection 83(1) of the IRPA). Further, at least once every six months, the person concerned must appear for an evaluation of whether he or she is still a danger to national security or the safety of any person or is unlikely to appear at a proceeding or for removal (subsections 83(2) and (3) of the IRPA). However, the Chief Justice may assign another designated judge to perform some of the duties mentioned in sections 76 et seq. of the IRPA for reasons of the sound administration of justice, such as the illness of the designated judge, a scheduling conflict and so on.
[11] The designated judge, both in reviewing the reasonableness of the certificate and in examining the reasons justifying continued detention, must "ensure the confidentiality of the information on which the certificate is based and of any other evidence" (paragraph 78(b) of the IRPA). In addition to performing these duties, the designated judge also has a duty to ascertain the reasonableness of the legality of the Ministers' decision regarding reviewing risks before removal, if necessary (subsections 80(1) and 112(1) of the IRPA).
[12] It can be seen from a careful reading of sections 76 to 85 IRPA that Parliament intended:
- through the Chief Justice, to give the designated judge several duties which in themselves require that several decisions be made in the course of hearing "the matter" (see paragraph 78(a) and subsections 79(1) and (2) IRPA);
- to entrust a designated judge with the duty of guaranteeing confidentiality of the information on national security, while requiring him or her to provide the person concerned with a summary of the evidence so the latter could be informed of the circumstances, but containing nothing which could impair national security or the safety of another person (paragraphs 78(b) and (h) IRPA);
- to require the designated judge to proceed "expeditiously", by providing for specific deadlines in the IRPA (paragraphs 78(c) and (d) and subsection 83(1) IRPA).
[13] Parliament accordingly expressly contemplated the possibility that the designated judge would hear "the matter", that is, determine the reasonableness of the certificate and undertake a review of the reasons justifying the detention. It thus intended to allow the judge to rule on these two aspects of "the matter". It is hard to imagine a system in which one judge would deal with the certificate, another judge would be responsible for continuing the detention, while another judge would be responsible for the statutory review of continuing the detention, and a final judge would review the reasonableness of the certificate and the legality of the Ministers' decision following a protection application.
[14] Further, it is difficult to reconcile a duty to ensure the confidentiality of information (a task which necessarily involves restricting access to secret information), and to provide sufficient information to the person concerned, with the involvement of more than one judge in the same case. It is also difficult to imagine a duty to proceed expeditiously while initiating proceedings arising out of the same "matter" before more than one judge. After a careful reading of the relevant provisions of the IRPA, I have come to the conclusion that the intention duly expressed by Parliament was as far as possible to entrust to one designated judge "the matter" arising out of the filing of a certificate in the Federal Court and the signature by the Ministers of a warrant for arrest and detention of the person concerned. The Federal Court of Appeal recognized this point in Charkaoui v. M.C.I. and S.G., 2003 FCA 407, at paragraph 19:
Indeed, it is clear from subsection 80(3) of the Act, which prohibits any appeal on the reasonableness of the certificate, that Parliament intended that the evidence concerning the dangerousness for national security, which is necessary in determining the reasonableness of the certificate, be taken and handled by the designated judge and go no further. (My emphasis.)
E. DETERMINING REASONABLENESS OF CERTIFICATE NOT THE SAME AS DETERMINING DANGER AND CONTINUANCE OF DETENTION
[15] Mr. Charkaoui argued that as the designated judge had concluded that the Ministers had discharged their burden of proof by presenting serious evidence of the danger to national security or the safety of any person, or that the person concerned was unlikely to appear at a proceeding or for removal, and concluded twice that the detention should continue, he would decide that the certificate was reasonable. Consequently, Mr. Charkaoui argued that the designated judge had become biased, or that there was an appearance of bias.
[16] A careful reading of sections 33 and 34, subsections 80(1) and (2) (regarding the reasonableness of the certificate) and sections 82 and 83 of the IRPA (concerning reviewing the continued detention) indicates that there is an important difference between the function of determining the reasonableness of the certificate and that of reviewing the continued detention.
[17] The Ministers considered that Mr. Charkaoui should be barred from Canada for reasons of security because of facts indicating that he [TRANSLATION] "will engage in terrorism; constitutes a danger to the security of Canada; is a member of an organization as to which there are reasonable grounds to believe that it is, was or will be the perpetrator of deliberate acts of espionage or subversion against a democratic institution, or the instigator or perpetrator of acts for the overthrow of a government by force, and that it will engage in terrorism" (Ministers' certificate of May 16, 2003, and paragraphs 34(c), (d) and (f) of the IRPA). This determination is made on a standard of reasonableness, as indicated in section 33 of the IRPA.
[18] Additionally, the designated judge must also assess the continued detention at the start of the proceeding and thereafter at least every six months. To do this, he uses sections 82 and 83 of the IRPA. It is his function to assess on the evidence whether there is a danger to national security or the safety of any person, or whether the person concerned is unlikely to appear at a proceeding or for removal (subsection 83(3) of the IRPA). The facts on which this assessment is based will vary depending on the evidence, the circumstances and the passage of time.
[19] The review of the reasonableness of the certificate and the assessment of the risk which serve as a basis for concluding that the detention should be continued, or that it should not be, are two separate exercises with different purposes. It is true that the background is the same in both cases, but the conclusions sought are not the same. The background has to do with the person concerned, his or her life, actions and deeds over a certain period, but the conclusions sought in law are different. For example, in Charkaoui, supra, page 10, at paragraph 14, Létourneau J.A. of the Federal Court of Appeal came to the following conclusion:
The existence of a close relationship between the certificate attesting inadmissibility and the detention proves to be an important factor in the search for Parliament's intention.
[20] It is possible to conceive of a situation in which a person concerned is kept in detention and the reasonableness of the certificate is subsequently not recognized, or a person concerned is released at the start of "the matter" but the reasonableness of the certificate is in due course upheld. In this connection, Blanchard J. wrote in Almrei v. The Minister of Citizenship and Immigration, [2004] F.C. 420, at paragraph 34:
I agree with the applicant that a determination that a security certificate is reasonable is not conclusive proof that the person is a danger to the security of Canada.
[21] At the start of the matter, and as provided in the IRPA, I informed the parties that to properly understand the Ministers' position (both with respect to the certificate and continuing the detention), I had reviewed the documents on which the certificate and the arrest warrant were based. I further informed them that I had held a hearing without the presence of Mr. Charkaoui and his counsel (decision of July 15, 2003, paragraph 7). In reviewing a "matter", a designated judge commonly undertakes an analysis of the facts which are important both for reviewing the certificate and continuing the detention. It is even conceivable that the evidence presented in reviewing the detention may be entered in the record of review of the reasonableness of the certificate.
[22] Accordingly, it follows that review of the reasonableness of a certificate, determining whether a danger exists and monitoring the continued detention are separate functions which ultimately lead to different conclusions. It cannot be said that a determination regarding continuing detention necessarily leads to the same kind of determination regarding the reasonableness of the certificate.
F. REVIEW OF THE "MATTER" TO DATE
[23] Since the start of the "matter", as the designated judge I have had to perform the duties designated by the IRPA and have signed two decisions regarding the continued detention of Mr. Charkaoui, namely the decisions of July 15, 2003 and February 4, 2004 (Charkaoui, 2004 FC 191, hereinafter "the February 4, 2004 decision"). Also pursuant to the proceeding laid down in the IRPA, I signed two decisions on December 5, 2003, regarding, in the one case, an application to produce protected documents, and in the other, determination of the constitutionality of sections 33 and 76 to 85 of the IRPA. I have also signed orders and directions to ensure follow-up of the case. Further, pursuant to paragraphs 78(b) and (h) IRPA, I have given Mr. Charkaoui a summary of the circumstances so as to enable him to understand the allegations made against him and present evidence, while at the same time protecting national security. I have also allowed disclosure of additional information under the same provisions.
[24] In the first decision of July 15, 2003, regarding the continued detention of Mr. Charkaoui, as this was the first decision concerning continued detention pursuant to the IRPA, I wished to explain my understanding of the function of the designated judge, the applicable burden of proof and the standard of review that should be applied. So far as possible, I went to the limits of what the IRPA allowed in informing Mr. Charkaoui of the Ministers' evidence and the assessment I had made of it. I also summarized Mr. Charkaoui's evidence and placed it in the context of the Ministers' evidence. I concluded from this that the Ministers had put forward persuasive evidence regarding the danger and I informed the parties that as the Ministers had discharged their burden, it was now shifted to Mr. Charkaoui.
[25] To facilitate Mr. Charkaoui's task, I identified three concerns, namely his life from 1992 to 1995 (in Morocco) and from 1995 to 2000 (in Canada), including travel; Mr. Charkaoui's trip to Pakistan from February to July 1998; and Mr. Charkaoui's contacts with, inter alia, Abousfiane Abdelrazik, Samir Ait Mohamed, Karim Saïd Atmani, Raouf Hannachi and Abdellah Ouzghar. Based on the evidence presented by both parties in this matter, I consider these three concerns are important to a responsible assessment of the danger and of the public interest. In the interest of justice and to resolve these concerns, I invited Mr. Charkaoui to submit evidence that might challenge the evidence submitted by the Ministers and enable him to recover his liberty.
[26] In the subsequent decision of February 4, 2004, on continuing the detention, I noted that Mr. Charkaoui had not dealt with these three concerns. However, the evidence he presented added to that of the first review, by increasing the surety from $25,000 to $50,000; filing newspaper articles dealing with the unreliability, and questioning the credibility, of Ahmed Ressam and Abou Zubaida, two individuals who identified Mr. Charkaoui as a person they had met in an Al-Quaeda training camp in Afghanistan in 1998, and whom they knew as "Zubeir Al-Maghrebi"; and by filing affidavits supporting his application for release. Mr. Charkaoui argued that in reviewing the continued detention, a designated judge should not be concerned with assessing the danger as his role was limited to identifying the conditions for the release and the amount of a surety.
[27] In my opinion, Parliament has (at subsection 83(3) of the IRPA) asked the designated judge to assess the danger, and having made the assessment, to consider release subject to conditions and sureties (if necessary). The danger is not assessed in a vacuum. Either the danger is real, or it is not. The Ministers submitted evidence in public, and in the absence of Mr. Charkaoui and his counsel, which I considered persuasive and which led me to conclude that they had discharged their burden. That evidence stands and I must take it into account. When the burden of proof has been shifted to the other party, as in Mr. Charkaoui's case, the latter must discharge it if he is to rebut the Ministers' evidence regarding danger and eventually gain a favourable ruling in the matter. The Federal Court of Appeal accepted this principle in Minister of Citizenship and Immigration and Kaileshan Thanabalasingham, 2004 FCA 4, at paragraph 16, when it assessed review of the reasons for detention as required by subsection 57(2) and section 58 of the IRPA:
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. The Minister may establish a prima facie case in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75:
. . . at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review.
In my view, the comments on subsection 57(2) and section 58 of the IRPA also apply to the interpretation of sections 82 to 85.
[28] Mr. Charkaoui complained that in the two decisions of July 15, 2003, and February 4, 2004, the designated judge had demonstrated bias, or perceived bias, by informing Mr. Charkaoui that the Ministers had submitted persuasive evidence enabling him to conclude that they had discharged their burden and informing Mr. Charkaoui that there were three concerns that should be addressed if the latter was to be successful and gain his release. I cannot accept this argument, as to date I have only reached conclusions based on the evidence put before me, which has given rise to the three concerns.
G. FACTS CREATING APPREHENSION OF BIAS, ACCORDING TO MR. CHARKAOUI
(i) Time of disclosure of additional evidence on July 17 and August 14, 2003, chosen for reasons of national security
[29] Mr. Charkaoui alleged that the disclosure of evidence on July 17, 2003, (Abou Zubaida, a collaborator of Osama Bin Laden, had recognized Mr. Charkaoui under the name Zubeir Al-Maghrebi) and that of August 14, 2003, (Ahmed Ressam had recognized Mr. Charkaoui under the name Zubeir Al-Maghrebi) showed that the designated judge had apparent bias, as in his view this information should have been disclosed at the hearing of the first review of the continued detention early in July 2003.
[30] However, I informed Mr. Charkaoui in the decision of July 15, 2003, at paragraphs 7 and 9, that the additional information could eventually be disclosed. In the decision of December 5, 2003, (Charkaoui, [2003] F.C. 1418, at paragraphs 15 to 19), I explained that the information he had been given could not have been disclosed earlier for reasons of national security. Mr. Charkaoui received the offer of a hearing to allow him to respond to this new disclosure before the six-month statutory review, but he declined it. I should like to emphasize that if this information could have been disclosed earlier, it would have been.
(ii) Newspaper articles regarding credibility and reliability of A. Ressam and A. Zubaida, and amended decision in Charkaoui, [2004] F.C. 191, on February 4, 2004
[31] At the second review of the continued detention, Mr. Charkaoui filed documentary evidence including newspaper articles commenting on the reliability and credibility of Ahmed Ressam and Abou Zubaida (decision of February 4, 2004, at paragraphs 6, 9 and 12). According to Mr. Charkaoui's arguments, the designated judge again demonstrated bias, or perceived bias, by failing to comment on the newspaper articles and their conclusions that A. Ressam and Abou Zubaida were not reliable and credible.
[32] As appears from paragraph 12 of the decision of February 4, 2004, all additional evidence filed, including the newspaper articles submitted by Mr. Charkaoui, was considered:
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.
(iii) Hearing of January 12, 2004
[33] January 12, 2004, was set aside for the statutory review of the continued detention. Review of the reasonableness of the certificate did not take place when the certificate was first filed as counsel for Mr. Charkaoui informed the Court on May 30, 2003, that they intended to challenge the constitutionality of sections 76 to 85 of the IRPA. Accordingly, at his request and with the consent of the Ministers, review of the reasonableness of the certificate was postponed to a later date. When this decision was made, the parties were informed that the designated judge had a statutory duty to proceed with the review of "the matter" as soon as possible and that there was difficulty reconciling this duty with the application to postpone review of the reasonableness of the certificate. However, since the application was by consent, the postponement was granted. The hearing on the constitutionality of sections 76 to 85 of the IRPA took place in October 2003 and the judgment was signed on December 5, 2003, (Charkaoui, 2003 F.C. 1419). In the said judgment, the hearing on the reasonableness of the certificate was set down for January 12, 2004. Mr. Charkaoui objected to the holding of this hearing on the following grounds:
- he had applied for leave to appeal the decision to the Federal Court of Appeal (Charkaoui v. M.C.I. and S.G., 2003 FCA 407) and the judgments by this Court on December 5, 2003, (Charkaoui, 2003 F.C. 1418, and Charkaoui, 2003 F.C. 1419) to the Supreme Court of Canada;
- he needed three months to prepare for such a hearing; and
- one of his counsel, Mr. Grey, was not available on January 12, 2004.
[34] Mr. Charkaoui argued that, by wanting to proceed to review the reasonableness of the certificate on January 12, 2004, the Court was biased or appeared to be biased. The date was determined according to the Court schedule and in accordance with paragraphs 78(c) IRPA, which imposes a duty to proceed expeditiously in reviewing "the matter". However, the review of the reasonableness of the certificate did not take place on that date as, at Mr. Charkaoui's request, the Court authorized an adjournment to a later date. The hearing was adjourned to early April 2004, but was cancelled as Mr. Charkaoui asked that the matter be stayed pursuant to subsection 79(1) of the IRPA following a protection application to the Ministers. No date has so far been set down for reviewing the reasonableness of the certificate. The hearing of January 12, 2004, dealt with the statutory review of the continued detention and a judgment regarding the continued detention was signed on January 23, 2004, (Charkaoui, 2004 F.C. 107, hereinafter "the January 23 decision"). The decision of January 23, 2004, was varied to clarify on February 4, 2004.
(iv) Three concerns regarding assessment of danger and review of continued detention
[35] Mr. Charkaoui considered that by expressing the three concerns in the decisions regarding continuing detention (the decisions of July 15, 2003, and February 4, 2004), the Court demonstrated [TRANSLATION] "pointed insistence that evidence be administered in accordance with the concerns identified by the Court, that is, on the merits of the case".
[36] As mentioned in the decisions (July 15, 2003, and February 4, 2004), I feel that danger to national security is not assessed in a vacuum and that the Court must assess each case in its context, taking into account all the facts related to this concept of danger. The three concerns were identified in order to restore a balance in the situation created by the evidence submitted in the absence of Mr. Charkaoui and to facilitate the latter's task of responding to it. So far, Mr. Charkaoui has essentially limited his evidence to the proposal of conditions for release and surety. However, Parliament's intention as to the approach that should be taken in national security matters is apparent from sections 82 to 85 of the IRPA. In the case at bar, taking into account all the evidence submitted and the public interest raised by this case, in order to obtain release Mr. Charkaoui should consider submitting evidence to resolve these concerns and eliminate the danger or risk alleged by the Ministers.
(v) Amount of surety
[37] Mr. Charkaoui argued that at the hearing of January 12, 2004, the Court decided [TRANSLATION] "that whatever the amount of the surety, [Mr. Charkaoui] would not be released". Mr. Charkaoui maintained that such a statement created an apprehension of bias, or perception of it. So far as I recall, and after reviewing the transcript of the hearing of January 12, 2004, and the decision of February 4, 2004, I cannot find that I made such comments. However, as I indicated at paragraphs 16 and 17 of the decision of January 23, 2004, Re Charkaoui, [2004] F.C. 107, I discussed the question of surety as follows:
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.
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.
(vi) Judge biased or perceived as biased as he did not demonstrate "sensitivity" in scheduling hearing for reviewing reasonableness of certificate on January 12, 2004
[38] Mr. Charkaoui considered, based on paragraph 47 of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, that the Court lacked sensitivity by imposing January 12, 2004, as the date for reviewing the reasonableness of the certificate, and this deficiency established the apprehension of bias or perceived bias:
It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St-Boniface, supra, at p. 1192. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. There are individualized, rather than decisions of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.
[39] In the following paragraph, the Supreme Court of Canada added:
In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenz's comments. His notes, and the matter in which are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes. Most unfortunate is the fact that they seem to make a link between Ms. Baker's mental illness, her training as a domestic worker, the fact that she has several children, and the conclusion that she would therefore be a strain on our social welfare system for the rest of her life. In addition, the conclusion drawn was contrary to the psychiatrist's letter, which stated that, with treatment, Ms. Baker could remain well and return to being a productive member of society. Whether they were intended in this matter or not, these statements give the impression that Officer Lorenz may have been drawing conclusions based not on the evidence before him, but on the fact that Ms. Baker was a single mother with several children, and had been diagnosed with a psychiatric illness. His use of capitals to highlight the number of Ms. Baker's children may also suggest to a reader that this was a reason to deny her status. Reading his comments, I do not believe that a reasonable and well-informed member of the community would conclude that he had approached this case with the impartiality appropriate to a decision made by an immigration officer. It would appear to a reasonable observer that his own frustration with the "system" interfered with his duty to consider impartially whether the appellant's admission should be facilitated owing to humanitarian or compassionate considerations. I conclude that the notes of Officer Lorenz demonstrate a reasonable apprehension of bias.
[40] As explained at paragraphs 31 et seq. of this judgment, the facts in the case at bar are clearly distinct from those discussed in Baker, supra. The hearing dates for sittings of the Federal Court are set in consultation with the parties, depending on the Court's schedule, and taking into account the statutory duty in paragraphs 78(c) of the IRPA, which imposes a duty to proceed in reviewing "the matter" expeditiously. January 12, 2004, had already been set aside, in consultation with the parties, as the date for reviewing the detention, and that is why it was used. At Mr. Charkaoui's request, the Court adjourned the hearing on the reasonableness of the certificate.
[41] It will be recalled that in Mr. Charkaoui's opinion the six facts mentioned above as a whole created an apprehension of bias or bias. As I have commented on each of these facts, and concluded that they did not individually establish an apprehension of bias or bias, I can only say that these facts as a whole do not support a reasonable apprehension of bias or perceived bias.
CONCLUSIONS
[42] This decision comes down to the fact that Mr. Charkaoui's arguments do not support the allegation that the designated judge should disqualify himself for an apprehension of bias, perceived bias or bias, for the following reasons:
- Parliament intended the designated judge to decide on the reasonableness of the certificate and the continuance of the detention;
- determination of the reasonableness of a certificate is not the same as determining danger and continued detention;
- the facts raised by Mr. Charkaoui concerning the proceedings and their continuance under the IRPA are not facts, as a whole or individually, that support a finding of perceived bias or of bias.
ORDER
FOR THESE REASONS:
- The application by Mr. Charkaoui for disqualification is dismissed.
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"Simon Noël" |
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Judge |
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-3-03
STYLE OF CAUSE: MCI v. ADIL CHARKAOUI
REASONS FOR ORDER AND ORDER BY: SIMON NOËL J.
DATE OF REASONS: APRIL 28, 2004
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Julius Grey
Luc Cadieux FOR THE RESPONDENT
Daniel Latulippe
SOLICITORS OF RECORD:
Doyon, Morin FOR THE APPLICANT
Montréal, Quebec
Julius Grey FOR THE RESPONDENT
Montréal, Québec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario