IMM-1-91
Joseph Smith and Sarah Smith (Applicants)
v.
Her Majesty the Queen (Respondent)
INDEXED AS: SMITH V. CANADA (T.D.)
Trial Division, Cullen J.—Toronto, February 5
and 12; Ottawa, March 11 1991.
Immigration — Refugee status — Applicants, Iraqi citizens,
entering Canada on forged documents, with weapons price list
and literature published by militant Shiite Islamic organiza
tion opposed to Iraqi regime detained as possible security risks
— Certificate issued under s. 40.1 stating not qualifying for
admission as suspected members of inadmissible classes —
Court quashing certificate as unreasonable — When personal
liberty at stake, high degree of probability required — Cred
ible explanation for weapons list — Admitted involvement
with organization — Absent more evidence as to individual
proclivity or involvement of applicants in terrorism, further
detention unreasonable.
Immigration — Practice — Minister issuing certificate
under s. 40.1 of Act stating applicants not qualifying for
admission to Canada as suspected members of inadmissible
classes — Order extending time to serve applicants with notice
of proceedings, allowing respondent to advance evidence of
CSIS officer, permitting hearing to be conducted in camera
and security intelligence reports be sealed — Compliance with
notice provision in s. 40.1(3)(b) not pre-condition to review by
Court under s. 40.1(4), although departures from statutory
standard condoned only where substantial compliance with
three-day time limit, and lack of prejudice to named person's
interests — Within Court's jurisdiction to extend time ex parte
— As s. 40.1(4)(a) gives judge discretion to hear evidence ex
parte if disclosure injurious to national security, by implica
tion may make orders necessarily incidental to exercise of
discretion — S. 40.1(4)(a) expressly allowing Court to hear
oral evidence in camera for national security reasons and by
implication decide to hear such evidence in camera — S.
40.1 (4)(b) not requiring judge to prepare summary himself
Certificate referred to Court as soon as reasonably possible in
circumstances, thus complying with `forthwith" ins. 40.1(3)(a)
— Under s. 40.1(4) judge sitting on review having discretion to
determine whether any part of information should not be
disclosed on grounds disclosure injurious to national security
or safety of persons — Guidelines in Henrie v. Canada (Secu-
rity Intelligence Review Committee) applied — Disclosure of
sealed file material injurious to national security.
These were proceedings under Immigration Act, section 40.1
to review a certificate issued thereunder to determine if it was
reasonable. The applicants, Iraqi citizens, had entered Canada
on January 9, 1991 on forged documents and claimed Conven
tion refugee status. They had in their possession a price list for
weapons and ammunition and literature published by the
Al -Dawa party, a militant Shiite Islamic organization which is
opposed to the current Iraqi government, and which engaged in
terrorist operations against Iraq with the support of the Iranian
government. CSIS believed that Al -Dawa had been involved in
bomb attacks against the French and American embassies in
Kuwait. Mr. Smith (applicants herein referred to by pseudo
nyms Joseph and Sarah Smith by Court order) admitted his
association with Al -Dawa. He had been jailed for two years in
Iraq for suspected membership in Al -Dawa. After his release
he fled to Iran and fought against Iraq in 1984. Through
Al -Dawa he provided basic religious instruction to Kurds in
1985. He returned to Iran where he met and married his wife.
When Iraq invaded Kuwait, Iraqi exiles in Iran were to be
forcibly repatriated to Iraq. Smith decided to flee to Canada as
he feared for his life should he be returned to Iraq. He stated
that the weapons price list had been compiled in 1986 when he
was at the Al -Dawa base in Iraq. A Kurdish arms merchant
had quoted the prices of his inventory should Al -Dawa be
interested in purchasing such goods.
The Smiths were detained as possible security risks. The
Minister of Employment and Immigration and the Solicitor
General filed a certificate under Immigration Act, section 40.1
stating that the applicants did not qualify for admission to
Canada because they were suspected of being members of
inadmissible classes. The effect of the certificate was to provide
for the continued detention of the applicants and to prevent any
further inquiry into their refugee status until the certificate has
been reviewed in the Federal Court to determine whether it was
reasonable.
Upon examination of the security intelligence reports con
sidered by the Minister and the Solicitor General and hearing
evidence presented by a CSIS officer, Cullen J. granted an
order extending the time to serve the applicants with notice of
the proceedings under paragraph 40.1(3)(b) from three days to
four after the certificate had been filed. The order also provided
that the respondents be allowed to advance the evidence of the
CSIS officer, that the hearing be conducted in camera in the
absence of the applicants and that the security intelligence
reports be sealed and kept separate from public court files.
The applicants objected that: (1) the Court lacked jurisdic
tion to extend the time for service, and that compliance with
the notice requirements of subsection 40.1(3) was a condition
precedent to the Court's review function; (2) the Court lacked
jurisdiction to make such orders on an ex parte basis; (3) s.
40.1 only authorizes in camera examination of the security
reports, so that the decision of the Court to hear the additional
evidence of the CSIS officer in camera should not have been
made in camera; (4) the summary of the information provided
to the applicants did not comply with paragraph 40.1(4)(b) as
the judge had not drafted it personally; (5) the reference of the
certificate to the Federal Court had not been filed "forthwith"
as required by paragraph 40.1(3)(a); (6) the Court should
order that fuller disclosure be provided to the applicants.
Held, the certificate should be quashed.
As to the preliminary objections: (1) Compliance with the
notice provision in paragraph 40.1(3)(b) is not a pre-condition
to the exercise of the Court's review function under subsection
40.1(4). That Parliament did not intend strict observance of the
notice provisions as a pre-condition to the Court's jurisdiction is
supported by the fact that the statute contemplates that in
some circumstances, a review may be conducted before the
person named in the certificate need be notified of the fact that
a certificate has been filed. "Shall" in subsection 40.1(3) is
directory, not mandatory. While statutory provisions should be
observed where possible, it may not always be practical where
national security is at risk to require strict compliance where
there is no serious prejudice to the person named. In addition,
no specific consequence is provided for the failure to provide
notice. As the person named in the certificate does not partici
pate until after the in camera review, the failure to notify the
applicants within the prescribed three-day period has not seri
ously prejudiced them. As the purpose of this notice provision is
to ensure that the person is aware of the reasons for detention
and the possibility of deportation, departures from the statutory
standard should only be condoned where there has been sub
stantial compliance with the three-day provision and a lack of
prejudice to the named person's interests. The delay in provid
ing notice was one day, which is neither significant nor unduly
prejudicial.
(2) Paragraph 40.1(4)(a) gives the Court discretion to hear
evidence in the absence of the person named in the certificate if
disclosure of same would be injurious to national security or the
safety of persons. This right extends by implication to the
making of orders necessarily incidental to the exercise of this
discretion and therefore the judge need not hear submissions on
these orders.
(3) Paragraph 40.1(4)(a) expressly authorizes a judge to
"hear any other evidence or information" in camera in his
discretion for national security reasons. By implication the
decision to hear oral evidence in camera may also be made in
camera.
(4) There is no express requirement in paragraph 40.1(4)(b)
that the summary be prepared by the judge himself. The
judge's function is to ensure that the person named has been
reasonably informed.
(5) "Forthwith" has been held to mean "as soon as possible
in the circumstances". The certificate was referred to the Court
as soon as was reasonably possible in the circumstances. When
the liberty of an individual is at stake, the matter should be
brought before the Court with all reasonable speed. The
respondent had to gather the necessary evidence and informa
tion to be presented in Court. Such research necessarily took
time after the certificate was issued. Since part of the time was
over a weekend, the time was reasonable in the circumstances.
(6) Subsection 40.1(4) gives the judge sitting on review of
the certificate the discretion to determine whether any part of
the information or evidence should not be disclosed on the
grounds that the disclosure would be injurious to national
security or the safety of persons. The disclosure of the sealed
file material would be injurious to national security. Applying
the guidelines set out in Henrie v. Canada (Security Intelli
gence Review Committee), it would be inappropriate to com
ment on the reasons for sealing the documents, as the com
ments could identify the evidence. The same would apply to the
request to produce the persons requested for cross-examination.
The certificate was not reasonable. Where personal liberty is
at stake, the standard of proof of reasonableness is a high
degree of probability. There was not sufficient evidence for the
Minister to have concluded that the applicants were members
of the inadmissible classes. Although there was evidence as to
the suspected activities of Al -Dawa, there was no evidence as to
the potential for subversive activities by the applicants as
individuals. Nor was it reasonable to consider that the appli
cants would engage in acts of violence that would endanger
people in Canada or that they belonged to an organization
likely to engage in such activities. Without more evidence as to
the individual proclivity or involvement of the applicants in
terrorism or other violence, further detention was not
reasonable.
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. 7.
Federal Court Rules, C.R.C., c. 663.
Immigration Act, R.S.C., 1985, c. I-2, ss. 2, 12,
19(1)(f),(g), 40, 40.1 (as enacted by R.S.C., 1985 (4th
Supp.), c. 29, s. 4), 103(3)(b) (as am. by R.S.C., 1985
(4th Supp.), c. 28, s. 27), 103.1 (as enacted idem, s.
12).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Parrot (1979), 27 O.R. (2d) 333; 106 D.L.R. (3d)
296; 51 C.C.C. (2d) 539 (C.A.); Henrie v. Canada
(Security Intelligence Review Committee), [1989] 2 F.C.
229; (1988), 53 D.L.R. (4th) 568 (T.D.); Reg. v. Secre
tary of State for the Home Department, Ex parte
Khawaja, [1984] A.C. 74 (H.L.).
DISTINGUISHED:
Neal v. A.G. (Sask.) et al., [1977] 2 S.C.R. 624; (1977),
56 C.C.C. (2d) 128; 17 N.R. 67; R. v. Garofoli, [1990] 2
S.C.R. 1421; (1990), 80 C.R. (3d) 317.
CONSIDERED:
Secretary of State for Education and Science v. Tame-
side Metropolitan Borough Council, [1977] A.C. 1014
(H.L.).
AUTHORS CITED
Jones, David Phillip and de Villars, Anne S. Principles of
Administrative Law, Toronto: Carswell Co. Ltd., 1985.
COUNSEL:
Clayton Ruby and Gregory James for
applicants.
Winston K. H. Fogarty, Josée Desjardins and
Mylène Bouzigon for respondent.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
CULLEN J.: The applicants in this matter
applied to be admitted to Canada as refugees.
They were detained as possible security risks, and
then brought before an adjudicator who reviewed
the circumstances of their detention. The adjudica
tor ruled that continued detention was not war
ranted and ordered that they were to be released
on conditions. The Minister of Employment and
Immigration and the Solicitor General then issued
a certificate pursuant to section 41 of the Immi
gration Act, 1976 (S.C. 1976-77, c. 52, as enacted
by S.C. 1988, c. 36, s. 4, now s. 40 of the Immi-
gration Act, R.S.C., 1985, c. I-2, as enacted by
R.S.C., 1985 (4th Supp.), c. 29, s. 4) (hereinafter
"the Act"). The certificate states that the appli
cants, in the opinion of the Ministers, do not
qualify for admission to Canada because they are
members of classes of persons described in para
graphs 19(1)(f) and 19(1)(g) of the Act, which
read as follows:
19. (1) No person shall be granted admission who is a
member of any of the following classes:
(/) persons who there are reasonable grounds to believe will,
while in Canada, engage in or instigate the subversion by
force of any government;
(g) persons who there are reasonable grounds to believe will
engage in acts of violence that would or might endanger the
lives or safety of persons in Canada or are members of or are
likely to participate in the unlawful activities of an organiza
tion that is likely to engage in such acts of violence;
The effect of such a certificate is to provide for
the continued detention of the applicants notwith
standing the order of the adjudicator, and to pre
vent any further inquiry into their refugee status
until the certificate has been reviewed in the Fed
eral Court. Pursuant to paragraph 40.1(3)(a) of
the Act, the ministerial certificate has been
referred to the Federal Court of Canada for review
by myself as a judge designated by the Chief
Justice of this Court to determine whether the
certificate is reasonable on the basis of the evi
dence and information available to me.
BACKGROUND
I propose to review the facts of this matter in
considerable detail before moving on to the legal
issues. The applicants, Iraqi citizens who are hus
band and wife, entered Canada on January 9, 1991
at Pearson International Airport in Toronto on a
flight from Tokyo. Upon arrival they sought entry
to Canada as Convention refugees, and were
examined by an immigration officer under section
12 of the Act. The applicants stated that they had
left Iran on January 1, 1991 for Kuala Lumpur,
Malaysia. They stayed there illegally for seven
days, and then flew to Canada after a one-day
stopover in Tokyo. The applicants had been travel-
ling on what Immigration Officials determined to
be a forged, damaged Saudi passport.
In the course of the examination, Mrs. Smith
was found to be in possession of an address book,
on one page of which the following was written in
Arabic (the translation is that provided by the
Minister of Employment and Immigration and the
Canadian Security Intelligence Service (CSIS)):
Missile 10 dinars
Explosive fuses
Bullets for a submachine gun 120 fels
Bullets for a heavy submachine gun 150 fels
Thagar black 17 dinars
Tracer bullets 30 dinars
The address book also contained several
addresses and telephone numbers, and a number of
handwritten phrases in Arabic. One of these
phrases was translated by CSIS as follows:
We will put the utmost terror in the hearts of the infidels who
believe in more than one God.
Mrs. Smith also had an identification card bear
ing her alias in Iraq as a member of the Islamic
Union of Iraqi Students, which CSIS believes is
linked to the Al -Dawa organization.
A search was conducted of the applicants' lug
gage, which yielded, inter alia, a false Iraqi pass
port, letters apparently written by the Iraqi secret
police indicating that a decision had been made to
arrest Mr. Smith for treason, and an identification
card indicating that Mr. Smith was a member of
the Islamic Revolutionary Guards, a division of
the Iranian military. In addition, literature and
pamphlets apparently published by the Al -Dawa
party were found. Upon the discovery of these
items, the applicants were questioned by officers of
CSIS about the circumstances of their arrival in
Canada and their relationship to Al -Dawa.
Al -Dawa
At this point, it would be useful to review the
information made available to the Court about
Al -Dawa. According to the evidence provided by
the respondent, consisting mainly of magazine and
newspaper articles and extracts from reference
books already in the public forum, Al -Dawa is a
militant, fundamentalist Shiite Islamic organiza
tion which is opposed to the relatively secularist
Baath Party regime of Saddam Hussein and
aligned with the Islamic revolutionary government
in Iran. With the outbreak of war between Iraq
and Iran in 1980, Baghdad deported thousands of
Shiites to Iran from southern Iraq, where they
form a majority. Some of these Iraqi exiles
engaged in terrorist operations organized by
Al -Dawa against Iraq, with the support of the
Iranian government. Al -Dawa is currently based in
Iran, but continues to function underground in
Iraq where it has engaged in bombings and hijack
ings against the Hussein government and other
Middle East states.
CSIS believes that Al -Dawa has been involved
in terrorist attacks against Western interests in the
Middle East, in particular bomb attacks in 1983
against the French and American embassies in
Kuwait. CSIS believes that these attacks were
carried out with the support and encouragement of
Iran. It also states that Al -Dawa has cooperated in
terrorist activities with the Lebanese Hizballah
group, a fundamentalist Shiite group that has also
been linked to Iran.
Interview with CSIS
The record of the interview reveals that Mr.
Smith was very forthcoming in his response to the
questions of the CSIS officers about his associa
tion with Al -Dawa. It should be noted that the
respondent has admitted that the CSIS officers did
not advise the applicants of, nor accord them, an
opportunity to retain and instruct counsel before
this interview. However, because of the ultimate
conclusion I have reached in this matter, I do not
think it necessary to consider any possible 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] ] violations arising out
of this admission. In any case, in my opinion this is
a case where unrestrained candour on the part of
the applicants has worked to their advantage
despite the absence of counsel.
Mr. Smith stated that he first became involved
with the party in Iraq in 1979, distributing leaflets
on its behalf and participating in demonstrations.
After the beginning of the Iran-Iraq war in 1980,
the Hussein government believed that Iran was
supporting Shiite opposition groups like Al -Dawa
in order to destabilize the Iraqi regime. The Iraqi
secret police were directed to search out and jail
these Shiite fundamentalists. Those who were
found to be Al -Dawa members were executed. Mr.
Smith was arrested and jailed in 1981. He could
not be directly linked to Al -Dawa, however, and he
was released in 1983.
After his release, Mr. Smith fled Iraq for Iran.
As an Iraqi, he required a government-approved
sponsor to stay in Iran during the war. Mr. Smith
was sponsored by the Al -Dawa party. At this time,
he took an alias to protect his family in Iraq in
case his association with Al -Dawa became known
to the Iraqi government through Iraqi informers
and agents. While in Iran, he volunteered for
service in the Islamic Revolutionary Guards, and
after a brief period of military training fought
against Iraq for three months in 1984. He then
returned to Tehran, where he worked for a maga
zine for a year.
Mr. Smith then became active in the Al -Dawa
again and volunteered to go to an Al -Dawa base in
Kurdistan in Iraq, which was to serve as a base for
sabotage actions against Iraqi facilities. Mr. Smith
told CSIS that he did not take part in any sabo
tage missions, his role being to provide religious
guidance to the local Kurds. CSIS asked him why
he had been given this responsibility, as he had no
formal religious training. He stated that he pro
vided instruction at a very basic level, as the
Kurdish peasants had only a very rudimentary
knowledge of their religion. He spent a year at the
base, during which a limited number of missions
were launched against Iraq, only one of which was
successful. He stated that he did not know the true
identities of the saboteurs, presumably a precau
tion taken against infiltration by Iraqi agents, and
had very little knowledge of their training.
In 1986, Mr. Smith was released from his duty
at the base and spent six months in the Iranian
city of Qom. Here he met and married Mrs. Smith
in 1987. Mrs. Smith had left Iraq in 1980, and had
moved to Iran after three years spent in Syria as a
legal visitor. They then returned to Tehran, where
Mr. Smith took up his former position with the
magazine.
With the end of the Iran-Iraq war in 1988,
relations between the former enemies began to
improve. Relations improved further after the
Iraqi invasion of Kuwait in 1990, and Mr. Smith
stated that he and other members of the Iraqi exile
community had been warned that one of the terms
of this rapprochement was that Iraqi exiles in Iran
would be forcibly repatriated to Iraq. He feared
that as an opponent of the Hussein regime his life
would be in danger should he be returned to Iraq.
He also stated that he feared that an Iraqi
embassy which had recently opened in Tehran
would be used to identify and eliminate dissidents
exiled in Iran.
Mr. Smith said he then decided to flee to
Canada based on its reputation as a free and
democratic society. He borrowed money and
bought the false Iraqi and Saudi passports and
plane tickets to Canada. The passports were made
out under the aliases the Smiths had used while in
Iran. A friend in Tehran provided him with the
names of people to contact in Toronto, who might
be able to assist him on arrival.
CSIS officers asked Mr. Smith to explain the
references to weapons in the address book. He
stated that he had compiled the list in 1986 when
he was at the Al -Dawa base in Iraq. He had been
approached by a Kurdish arms merchant, who
knew Mr. Smith to be an Al -Dawa member. The
merchant asked Mr. Smith to record the prices of
some of his inventory should Al -Dawa be interest
ed in purchasing some. Mr. Smith said he had
passed this information on to his colleagues in the
military section of the base, and did not know if
any purchases had taken place.
CSIS also asked Mr. Smith to explain the
Arabic statement in the notebook concerning the
"infidels". He stated that it was a Koranic verse,
which was used by members of Al -Dawa as pass
words amongst themselves. This particular pass
word had been given to him before he had left the
base in Iraq for Qom, and was to be used when
contacting other Al -Dawa members when he
arrived in the city. He stated that he had written
the verse in the notebook so he would be able to
recall it when he arrived in Qom.
Mr. Smith concluded the interview by advising
the CSIS officers that he had come to Canada for
peaceful reasons, and had no intention of rejoining
Al -Dawa if he were allowed to remain in Canada.
DETENTION OF THE SMITHS
A decision was made to detain the Smiths for
seven days pursuant to paragraph 103.1(1)(a) [as
enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 12]
of the Act, on the grounds that they had not
satisfied the immigration officer as to their identi
ty, and that they suspected the Smiths to be
members of an inadmissible class. The Smiths
were ordered detained in separate detention cen
tres. The detention was ordered to be continued by
a senior immigration officer on January 16, 1991
after review by an adjudicator.
On January 23, 1991, the Minister of Employ
ment and Immigration issued a certificate under
subsection 103.1(2) [as enacted idem] of the Act
stating that the identity of the applicants had not
yet been established, and that the Minister had
reason to suspect that they were members of an
inadmissible class of persons. The Minister stated
that a further period of detention was necessary to
investigate these matters, and the applicants were
then brought before another adjudicator pursuant
to subsection 103.1(5) [as enacted idem] of the
Act in order to determine if reasonable efforts of
investigation were being made by the Minister that
would warrant their continued detention.
Hearing Before the Adjudicator—January 23-24,
1991
At the hearing, a senior immigration officer
stated that the applicants were being investigated
by the Canadian Security and Intelligence Service
(CSIS) as possible security risks, on the grounds
that they had entered Canada on forged docu
ments, that Mr. Smith had admitted his associa
tion with Al -Dawa, and that he had been in posses
sion of the weapons list in the notebook. The
officer acknowledged that Al -Dawa did not sup
port the current Iraqi government, but submitted
that given the state of war between the United
Nations Alliance and Iraq, it was conceivable that
the applicants might act on behalf of Iraq in
Canada should the war begin to go badly for Iraq.
The officer offered his assurance to the adjudica
tor that an active investigation of the applicants
was being carried out by CSIS, and that he had a
report by CSIS in his possession, but declined to
produce it or any other evidence of the investiga
tive efforts at the hearing.
The adjudicator determined that the Minister
had not satisfied him that reasonable efforts were
being made to investigate the identities of the
applicants or their alleged membership in an inad
missible class, as the immigration officer had pro
vided no factual basis for him to determine if the
efforts were reasonable. He therefore refused to
order continuing detention under subsection
103.1(5) of the Act. He stated that while the facts
provided by the immigration officer may have
warranted the initial detention, they did not consti
tute reasonable investigative efforts that would
justify continued detention.
The immigration officer then argued that the
adjudicator should order the continued detention
of the applicants under paragraph 103(3)(b) [as
am. by R.S.C., 1985 (4th Supp.), c. 28, s. 27] of
the Act on the ground that the applicants posed a
danger to the public. In support of this position he
submitted that the applicants were members of a
terrorist group that CSIS had determined was
hostile to the West, that they did not have valid
identification, and referred to the inscriptions
referring to weapons and "striking terror" in the
address book.
Counsel for the applicants stated that the CSIS
information about Al -Dawa was erroneous and
outdated. He submitted that the applicants posed
no threat to Canada because of their membership
in Al -Dawa, and that the applicants' association
with Al -Dawa was the reason they sought refuge
in Canada in the first place. He observed that Mr.
Smith had spent two years in prison for opposition
to the Iraqi government, which bolstered the credi
bility of his refugee claim. He argued that anyone
entering Canada intending to engage in terrorism
would be unlikely to carry with them literature
about their cause, or enter on forged, damaged
passports. As for the inscriptions in the address
book, he submitted that Mr. Smith had provided
candid, credible explanations for them. As for
Mrs. Smith, she was now pregnant, and unlikely to
constitute a danger to Canada.
The adjudicator ordered that the applicants be
released on conditions. He stated that he could not
conclude on the evidence provided that the appli
cants posed a danger to the public. He acknowl
edged that Al -Dawa was opposed to the Iraqi
government and had probably engaged in armed
opposition to it. However, he stated that the Min
ister had failed to provide any evidence beyond the
assertion of the immigration officer that Al -Dawa
was likely to engage in activities against North
America or other members of the Alliance. In
addition, he found that there was no evidence that
the applicants themselves had ever engaged in
terrorism, and that even if Mr. Smith had engaged
in armed resistance to the Iraqi regime in the past,
there was no evidence that he would engage in
violent acts while in Canada. The adjudicator also
found that the explanations provided by Mr. Smith
as to the address book were credible and consistent
with his claim for refugee status as an opponent of
the Iraqi government.
CERTIFICATE UNDER SUBSECTION
40.1(1) OF THE ACT
On January 25, 1991, the Minister of Employ
ment and Immigration and the Solicitor General
filed a certificate with a senior immigration offi
cer, acting under section 40.1 [as enacted by
R.S.C., 1985 (4th Supp.), c. 29, s. 4] of the Act,
which states (in the provisions relevant to this
proceeding):
40.1 (1) Notwithstanding anything in this Act, where the
Minister and the Solicitor General 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 paragraph
19(1)(d),(e),(f),(g) or (j) or 27(2)(c), 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), an inquiry under this Act concerning the person
in respect of whom the certificate is filed shall not be com
menced, or if commenced shall be adjourned, until the determi
nation referred to in paragraph (4)(d) has been made and a
senior immigration officer or an adjudicator shall, notwith
standing section 23 or 103, 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 infor
mation 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 infor
mation 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 reason
able 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).
(5) For the purposes of subsection (4), the Chief Justice or
the designated judge may receive and accept such evidence or
information as the Chief Justice or the designated judge sees
fit, whether or not the evidence or information is or would be
admissible in a court of law.
(6) A determination under paragraph (4)(d) is not subject to
appeal or review by any court
(7) Where a certificate has been reviewed by the Federal
Court pursuant to subsection (4) and has not been quashed
under paragraph (4)(d),
(a) the certificate is conclusive proof that the person named
in the certificate is a person described in paragraph
19(1)(d),(e),(f),(g) or (j) or 27(2)(c); and,
(b) the person named in the certificate shall, notwithstanding
section 23 or 103, continue to be detained until the person is
removed from Canada.
A detention order was then issued in respect of
the applicants by a senior immigration officer.
Section 41 [now section 40.1] was enacted by
An Act to amend the Immigration Act, 1976 and
the Criminal Code in consequence thereof, S.C.
1988, c. 36, s. 4 now R.S.C., 1985 (4th Supp.), c.
29, s. 4, and proclaimed in force October 3, 1988.
Section 40.1 provides for a form of judicial review
in the case of an applicant for refugee status who
is not a permanent resident of Canada and who for
security or other specified reasons may not be
admitted to Canada. The concerned ministers file
with this Court a certificate of their conclusion
that a person does not qualify for admission, for
review by the Court to determine whether the
certificate is reasonable on the evidence and infor
mation provided to the judge. Until this determi-
nation is made, and the certificate either quashed
or approved, any inquiry into the refugee status of
the applicant may not be commenced, or if already
commenced it must be adjourned.
On January 31, 1991, I conducted a hearing
during which I examined the security intelligence
reports considered by the Minister and the Solici
tor General. I also heard other evidence presented
by a CSIS officer, Gregory Pearce. Following this
hearing I signed an order that extended the time to
serve the applicants with notice of the proceedings
pursuant to paragraph 40.1(3)(b) to January 29,
1991, four days after the certificate had been filed
instead of the three days provided for in paragraph
40.1(3)(b). The order also provided that the
respondents be allowed to advance the evidence of
Gregory Pearce, that the hearing be conducted in
camera in the absence of the persons named in the
certificate and their counsel and that the security
intelligence reports be sealed and kept separate
and apart from other public court files. I examined
a summary of the information provided to me
which had been prepared by CSIS, vetted it and
ordered it served on the applicants. I then sched
uled February 5, 1991 as the date on which the
applicants would have their "reasonable opportu
nity to be heard".
HEARINGS OF FEBRUARY 5 AND 12, 1991
The hearing was held in open court on the
request of the applicants, which was not objected
to by the respondent. I also ordered, on the request
of the applicants and without objection from the
respondent, that in the best interests of the appli
cants that they be referred to in these proceedings
by the pseudonyms Joseph Smith and Sarah
Smith.
At the hearing, counsel for the applicants
attempted to move before me a motion by way of
certiorari to quash the order of detention made by
the senior immigration officer on January 25,
1991. However, as leave for the motion had not
been obtained I refused to allow the motion to be
filed at the hearing. Counsel for the applicants
then stated that he would seek leave to file the
motion in the ordinary course as an application
separate and apart from these proceedings under
section 40.1 of the Act.
At the hearing, the applicants made a number of
preliminary objections about the procedures fol
lowed by the Court and the respondent in this
matter, which the applicants submitted affected
the jurisdiction of the Court to consider the rea
sonableness of the certificates. These objections
are as follows:
(a) That the order I made to extend time for service of notice to
the applicants was made without jurisdiction, and that compli
ance with the notice requirements of subsection 40.1(3) is a
condition precedent to the jurisdiction of this Court over the
subject-matter of this proceeding;
(b) That the Court had no jurisdiction to make the order
extending time or the other orders on an ex parte basis;
(c) That the decision of the Court to hear the additional
evidence of Gregory Pearce in camera should not have been
made in camera;
(d) That the summary provided to the applicants did not
comply with paragraph 40.1(4)(b) of the Act, as it had not
been drafted by the designated judge personally;
(e) That the reference of the certificate to the Federal Court
was not filed "forthwith" as required by paragraph 40.1(3)(a)
of the Act;
(f) That the Court should order that fuller disclosure be
provided to the applicants of the sealed documents, that full
details be provided of all evidence heard in camera, that the ink
and paper in the address book be dated by forensic science
techniques, that the CSIS officers who interviewed the appli
cants be made available for cross-examination, that the transla
tor of the materials be produced for cross-examination, and
that the complete CSIS file on Al -Dawa be produced for use by
the applicants.
The matter was then adjourned to February 12,
1991, when the submissions of the parties on the
preliminary objections were heard. Following
argument on these issues I reserved my decision. It
was agreed at that time that if I found no merit in
the preliminary objections, the applicants would
have their "reasonable opportunity to be heard"
provided by paragraph 40.1(4)(c) of the Act on
March 26, 1991. With respect to the issue of more
extensive disclosure, counsel for both parties
undertook to consult with each other as to whether
they could agree on terms by which the evidence of
the CSIS officers could be placed before the
Court. The Court was subsequently advised by
letter dated February 22, 1991 that they were not
able to come to an agreement. With regard to the
issue of the age of the ink and paper in the
notebook, the respondent stated that it was pre
pared to accept the admission of Mr. Smith that
the address book had been most recently used in
1986.
PRELIMINARY OBJECTIONS
The objections by the applicants are directed
towards the jurisdiction of this Court to hear the
merits of the case. While my ultimate conclusion
as to the reasonableness of the certificate tend to
make most of the issues raised in the following
analysis academic, I feel that they must be
addressed as the jurisdiction of the Court to make
the ultimate determination of reasonableness has
been challenged.
1. Order to Extend Time
The respondent put forward several arguments
to counter the submission of the applicants that
this Court has no jurisdiction to grant an extension
of time. First, the respondent submitted that com
pliance with the notice provisions in paragraph
40.1(3)(b) is not a condition precedent to the
Court having jurisdiction to consider the reason
ableness of the certificate. The respondent further
argued that the word "shall" in the context of the
notice provisions should be read as having directo
ry and not mandatory import in this particular
context. In the alternative, it was submitted that
the Court had the implied power to extend time in
order for it to effectively exercise the review juris
diction over the certificate expressly granted by
the Act. Finally, the respondent submits that the
computation of time provisions in the Federal
Court Rules [C.R.C., c. 663] should apply to this
proceeding.
I agree with the respondent's submission that
compliance with the notice provision is not a pre
condition to the exercise of its review function
under subsection 40.1(4). It should be noted that
under paragraph 40.1(4)(a), the Court is required
to conduct the in camera review within seven days
of the referral of the certificate to the Court under
subsection 40.1(3). The referral to the Court is to
be made "forthwith" after the filing of the certifi
cate with the appropriate immigration official
under subsection 40.1(1). The person named in the
certificate is to be notified that a certificate has
been filed within three days of it being filed. It is
therefore possible that a certificate could be filed,
referred to the Court and reviewed before the
three-day notice provision has expired. It is true
that in this case, the applicants were not notified
until four days had elapsed from the date the
certificate was filed, and that the review by the
Court was conducted six days later. However, it
still must be observed that the statute contem
plates that in some circumstances, a review may be
conducted before the person named in the certifi
cate need be notified of the fact that a certificate
has been filed. I would therefore conclude from the
above that it was not the intention of Parliament
that strict observance of the notice provisions is a
pre-condition to the judicial consideration of the
certificate under subsection 40.1(4).
I am also satisfied that the respondent is correct
in submitting that the word "shall" in subsection
40.1(3) should be read as being directory and not
mandatory. Jones and de Villars, in their text
Principles of Administrative Law (1985, Carswell)
observe at page 111 that in determining whether a
statutory requirement is mandatory or directory,
the Court should consider
... the policy of the Act, all of its provisions, the reason for
including the specific statutory requirement in question, wheth
er any statutory consequence is provided for failure to comply,
and what the practical effect of non-compliance is on the
complainant or any other person.
In my view, the legislative framework concern
ing time limits was intended to be directory and
not mandatory. The policy and purpose of the
Immigration Act, as set out in section 2 of the Act,
balances the security interests of the state with the
individual rights of the parties seeking entry to
Canada, and thus could be construed as supporting
either characterization. However, while statutory
provisions should be observed if at all possible, it
may not always be practical in circumstances
where national security is at risk to require strict
compliance where there is no serious prejudice to
the person named. In addition, there is no specific
consequence provided for the failure to provide
notice. As there is no basis for participation by the
person named in the certificate until after the in
camera review, the failure of the respondent to
notify the applicants within the prescribed three-
day period has not seriously prejudiced them in the
circumstances of this case. This does not mean,
however, that significant delays in meeting the
statutory notice requirement should be excused by
the Court as mere irregularities. It would appear
that the purpose of this particular notice require
ment in the Act is to ensure that a person named
in a certificate is aware of the reason for his or her
continued detention, and also of the fact that they
may face deportation. In my view, these are sig
nificant interests that should be protected, and
departures from the statutory standard should only
be condoned where there has been substantial
compliance with the three-day provision and a lack
of prejudice to the named person's interests. In this
case, the delay in providing notice to the applicants
was one day, which is not significant nor unduly
prejudicial in the circumstances.
I would therefore conclude that based on the
foregoing, the jurisdiction of the Court to consider
the reasonableness of the certificate has not been
affected by the failure of the respondents to strict
ly observe the notice requirements. It is therefore
unnecessary to consider the alternative grounds
put forward by the respondent on this issue.
2. Ex Parte Proceedings
Counsel for the applicants submits that there
was no jurisdiction for the Court to have made the
order extending time, nor the other elements of the
order, on an ex parte basis. In support of this
submission, he relies on Neal v. A.G. (Sask.) et al.,
[1977] 2 S.C.R. 624, a case in which the Supreme
Court of Canada ruled that an application by the
Crown for extension of time to file an appeal
against an acquittal in a summary conviction case
obtained ex parte should be set aside.
I am unable to see any merit in this submission.
In my opinion, the case at hand is easily distin
guishable from that in the Neal case. It is trite law
that the normal practice in any legal proceeding is
to provide notice to the other side, and an opportu
nity to make submissions. However, in this case, I
believe that paragraph 40.1(4)(a) of the Act pro
vides the Court with the jurisdiction to proceed ex
parte. Unlike the situation in Neal, the statute in
this case clearly provides the presiding judge with
the discretion to hear all or part of the evidence or
information presented in the absence of the person
named in the certificate or their counsel if the
disclosure of such evidence would be injurious to
national security or the safety of persons. In my
opinion, this right to exclude would by implication
extend to the making of orders necessarily inciden
tal to the exercise of this discretion, and therefore
the judge need not hear submissions on these
orders. In this case, the order to hear the evidence
of Gregory Pearce in camera was incidental to the
decision that the evidence should not be disclosed,
which is a determination that the judge is express
ly authorized to make. Similar points could be
made with respect to the orders to conduct the
entire hearing in camera, to seal the reports, and
providing an edited summary. As for the order to
extend time, I am satisfied that this could also be
conducted in camera as part of the overall pro
ceedings, and in any event for the reasons given
above no prejudice resulted from the lack of oppor
tunity to make submissions on this point.
3. In Camera Proceedings
The applicants submit that section 40.1 only
authorizes in camera examination of the security
reports considered by the Ministers, and other
information like the oral evidence of Pearce in
limited circumstances. They also submit that the
decision to allow further evidence to be called in
camera cannot be made in camera.
In my opinion, this submission is also without
merit. Paragraph 40.1(4) (a) expressly authorizes a
judge to "hear any other evidence or information"
in camera in his discretion for national, security
reasons. There is no reason to exclude oral evi
dence from the scope of this provision. As for the
submission that this decision cannot itself be made
in camera, I would dispose of this argument for
the same reasons as put forward in the section on
ex parte proceedings.
4. The Summary
The applicants further submit that the state
ment summarizing the information necessary for
the applicants to be reasonably informed of the
circumstances giving rise to the certificate must be
prepared by the judge himself. There is no express
requirement in paragraph 40.1(4) (b) that the sum
mary be prepared by the judge himself, and I
would not read one in the absence of compelling
reasons to do so. In my opinion, the function of the
judge in this case is to ensure that the person
named has been reasonably informed. In this case,
I examined and approved the report of the evi
dence available to me, and in my discretion
ordered parts edited from the summary in the
interests of national security without prejudicing
the applicants' right to be reasonably informed. I
would also note that editing of information pro
vided to the Court occurs in analogous judicial
situations, such as the affidavits of police inform
ers when access is sought to the sealed packet in a
wiretap case: see R. v. Garofoli, [1990] 2 S.C.R.
1421.
5. "Forthwith"
The applicants also submit that as the reference
of the certificate was not made to the Federal
Court until four days had elapsed since the filing
of the certificate, it was not referred "forthwith"
as required by paragraph 40.1(3)(a) of the Act.
The meaning of "forthwith" was considered by
the Ontario Court of Appeal in R. v. Parrot
(1979), 27 O.R. (2d) 333. The accused union
leader was required by back-to-work legislation to
give notice "forthwith" to his workers that a strike
had become invalid. The Court considered the
meaning of "forthwith", at pages 339-340:
Finally, ... we are satisfied that the word "forthwith" in s. 3(1)
of the statute must be read as meaning "immediately" or "as
soon as possible in the circumstances, the nature of the act to
be done being taken into account": 37 Hals., 3d. ed., p. 103; or
"as promptly as is reasonably possible or practicable under all
the circumstances": R. v. Bell, [ 1969] 2 C.C.C. 9 at p. 18 ... .
Reference to all reported cases seem to support the twin
proposition that "forthwith" does not mean instantly (R. v.
Cuthbertson, supra), but, rather, without any unreasonable
delay, considering "the objects of the rule and the circum
stances of the case": per Jessel M.R., Ex parte Lamb (1881),
19 Ch. D. 169 at p. 173 .... See also Mihm et al. v. Minister
of Manpower & Immigration, [ 1970] S.C.R. 348 at p. 358... .
In this case, I am satisfied that the certificate was
referred to the Court as soon as was reasonably
possible in the circumstances. It is of course desir
able that in a case in which the liberty of an
individual is at stake, that the matter be brought
before the Court with all reasonable speed. In this
case, it was necessary for the respondent to gather
the necessary evidence and information to be pre
sented before the Court. Such research necessarily
takes time from the time that the certificate was
issued, and in this case, when part of the time took
place over a weekend, I am satisfied that the time
taken was reasonable in the circumstances. I
would note that the statute provides that the secu
rity and intelligence and other reports should be
examined by the Court within seven days of the
issuance of the certificate, and in this case the four
days that did elapse still left the Court with suffi
cient time to adequately examine the evidence.
6. Greater Disclosure
As noted above, the applicants sought greater
disclosure of the material that was before the
Court in the in camera hearing. They sought full
disclosure of the documents in the sealed files, that
full details be given of the evidence provided by
witnesses at the hearing, and that the author of the
written material submitted before me be produced
for cross-examination. They also requested that
the officers who searched and questioned the
applicants and the translator be made available for
cross-examination. They also submitted that any
files that CSIS may have on Al -Dawa be produced
for examination by the applicants.
The respondent stated at the hearing that it was
opposed to producing the CSIS officers who inter
viewed the applicants for cross-examination, but
that the respondent would be prepared to allow the
applicants to submit written questions concerning
any potential Charter violations or other
irregularities which may have occurred during the
course of the interview, which the officers would
answer by affidavit. The respondent opposed the
request for production of any sealed documents,
files or other excluded evidence from the hearing
on the ground that they could not be disclosed for
reasons of national security. For the same reason,
the respondent objected to producing the CSIS
translator for cross-examination. As for the
request to cross-examine the author of the written
material, this was considered acceptable as long as
the cross-examination was limited to matters that
did not enter the realm of national security.
Subsection 40.1(4) of the Act gives me as a
judge sitting on review of the certificate the discre
tion to determine whether any part of the informa
tion or evidence before me should not be disclosed
on the grounds that the disclosure would be injuri
ous to national security or the safety of persons. I
was satisfied that in the circumstances, the disclo
sure of the sealed file material would be injurious
to national security. In this respect, I adopt the
remarks of Addy J. in Henrie v. Canada (Security
Intelligence Review Committee), [1989] 2 F.C.
229 (T.D.), at pages 242-243 as appropriate guide
lines for the exercise of this discretion:
It is of some importance to realize that an "informed read
er", that is, a person who is both knowledgeable regarding
security matters and is a member of or associated with a group
which constitutes a threat or a potential threat to the security
of Canada, will be quite familiar with the minute details of its
organization and of the ramifications of its operations regard
ing which our security service might well be relatively unin
formed. As a result, such an informed reader may at times, by
fitting a piece of apparently innocuous information into the
general picture which he has before him, be in a position to
arrive at some damaging deductions regarding the investigation
of a particular threat or of many other threats to national
security. He might, for instance, be in a position to determine
one or more of the following: (1) the duration, scope, intensity
and degree of success or of lack of success of an investigation;
(2) the investigative techniques of the service; (3) the typo
graphic and teleprinter systems employed by CSIS; (4) internal
security procedures; (5) the nature and content of other classi
fied documents; (6) the identities of service personnel or of
other persons involved in an investigation.
For these reasons, it is not possible to comment
directly on the reasons for sealing the particular
documents in this case, as my comments could
serve to identify the evidence and other factors
listed by Addy J. The same considerations would
apply to the applicants' request to produce the
persons requested for cross-examination. The
applicants cite R. v. Garofoli, supra, as authority
for their request to have the CSIS officers pro
duced for cross-examination. In Garofoli, the sit
uation is distinguishable, because while there was
concern over the secrecy and efficacy of police
investigations, there was no corresponding national
security concern.
It is still possible that the process under section
40.1 may violate the Charter. The issue of whether
the procedure for review of the security certificate,
disclosure of evidence and detention set out in
section 40.1 of the Act violates section 7 of the
Charter was referred to in oral argument at the
hearing, but no detailed submissions were made on
this point. It is probable that a detailed Charter
argument was to be made by the applicants at the
hearing scheduled for March 26, 1991, their "rea-
sonable opportunity to be heard". I have come to
the conclusion, however, that it is not necessary to
provide the applicants with additional time to con
stitute reasonable opportunity to be heard, beyond
the submissions already made, because it appears
to me that the Minister has not demonstrated that
the certificate was reasonable on the basis of the
evidence before me. As the Charter issues have not
been argued in detail, and no evidence has been
lead under section 1, I express no opinion as to
whether section 40.1 could withstand Charter
scrutiny.
REASONABLENESS OF THE CERTIFICATE
Having concluded that I have jurisdiction to
make this determination it might reasonably have
been expected that we would now move under
paragraph 40.1(4)(c) to provide the persons
named in the certificate with a reasonable oppor
tunity to be heard and in fact that was to take
place on 26 March 1991. However, having exam
ined the issues involved in some considerable detail
and having heard the case for applicants, I can
find no need to hear from the detainees because
the substantive issue can be determined now.
DECISION
The first step is to determine the appropriate
meaning to be accorded to the word "reasonable"
in paragraph 40.1(4)(d). In judicial review of
administrative action, the role of the Court is
usually not to review the merits of the decision, but
rather to determine whether the decision-maker
has acted in accordance with the law. Usually, if
there is an express requirement of reasonable con
duct in the relevant statute, the official if chal
lenged must justify the decision by providing evi
dence that would demonstrate that there was a
rational basis for his decision, and that he did not
base his conclusion on irrelevant considerations.
An example of the relatively restrictive approach
to reasonableness is found in the decision of Lord
Diplock in Secretary of State for Education and
Science v. Tameside Metropolitan Borough Coun
cil, [1977] A.C. 1014 (H.L.), at page 1064, where
he stated that a statutory requirement that a
public authority exercise a discretion "reasonably"
should be regarded as proscribing "conduct which
no sensible authority acting with due appreciation
of its responsibilities would have decided to
adopt".
In my opinion, however, a higher standard of
proof of reasonableness should be applied in cases
where an interest in personal liberty is at stake. In
Reg. v. Secretary of State for the Home Depart
ment, Ex parte Khawaja, [1984] A.C. 74, the
House of Lords considered certain provisions of
the British Immigration Act [(U.K.), 1971, c. 77]
and held that if an immigration officer ordered the
detention of any person as an illegal entrant, it
would not be sufficient merely to show some
reasonable grounds for the action. As a liberty
interest was at stake in the detention, the immigra
tion officer had to satisfy a civil standard of proof
to a high degree of probability that the detained
person was an illegal entrant. As Lord Scarman
stated for the majority, at pages 113-114:
My Lords, I would adopt as appropriate to cases of restraint
put by the executive upon the liberty of the individual the civil
standard flexibly applied .... It is not necessary to import into
the civil proceedings of judicial review the formula devised by
judges for the guidance of juries in criminal cases. Liberty is at
stake: that is, as the court recognised in Bater v. Bater [1951]
P. 35 and in Hornal v. Neuberger Products Ltd. [1957] 1 Q.B.
247, a grave matter. The reviewing court will therefore require
to be satisfied that the facts which are required for the justifi
cation of the restraint put upon liberty do exist. The flexibility
of the civil standard of proof suffices to ensure that the court
will require the high degree of probability which is appropriate
to what is at stake. " ... the nature and gravity of an issue
necessarily determines the manner of attaining reasonable
satisfaction of the truth of the issue": Dixon J. in Wright v.
Wright (1948) 77 C.L.R. 191, 210. I would, therefore, adopt
the civil standard flexibly applied in the way described in the
case law to which I have referred. And I completely agree with
the observation made by my noble and learned friend, Lord
Bridge of Harwich, that the difficulties of proof in many
immigration cases afford no valid ground for lowering the
standard of proof required.
Applying the standard set in Khawaja, it is
apparent to me that the certificate issued under
section 40.1 is not reasonable and should therefore
be quashed. I do not find that there is sufficient
evidence on the standard set out in Khawaja for
the Minister to have concluded that the applicants
were members of the inadmissible classes
described in paragraphs 19(1)(f) and 19(1)(g) of
the Act. There are insufficient grounds to believe
that the applicants will attempt to instigate the
subversion by force of any government while in
Canada. The connection of the applicants with
Al -Dawa, which they freely admitted, is in my
opinion an insufficient basis on which to conclude
that the applicants will engage in subversion with
out substantial evidence that they as individuals
would engage in subversion while in Canada. The
evidence provided by the respondent dealt with the
suspected activities of Al -Dawa, but did not pro
vide any evidence as to the potential for subversive
activities by the applicants as individuals. As the
adjudicator pointed out, the fact that Mr. Smith
may have engaged in armed resistance against
Iraq in the past does not mean that he will do so
while in Canada. As for the address book, I agree
with the adjudicator that the explanations pro
vided by the applicants were credible, and con
sistent with the refugee claim of the applicants.
I would also conclude that it is not reasonable to
consider that the applicants will engage in acts of
violence that would endanger people in Canada, or
are a member of an organization likely to engage
in such activities. There was no evidence provided
by the respondent that Al -Dawa has engaged in
such activities in Canada, or is likely to in the
future. The same could be said of the applicants.
The possible inferences that could be drawn from
their association with Al -Dawa or the address
book are in my opinion insufficient in the absence
of more direct, individualized evidence about their
likelihood to take part in such activities. In my
opinion, it is possible that groups which are
involved in terrorism, which it appears that
Al -Dawa might be in certain circumstances, are
not monolithic, but rather may contain within
their ranks those who are less disposed to violence
or even totally uninvolved. Without more evidence
as to the individual proclivity or involvement of the
applicants in terrorism or other violence, I do not
believe that further detention is reasonable.
In my opinion, the activities of the applicants
are consistent with their claim for refugee status,
who often arrive in this country with questionable
documentation. The applicants appear to have a
genuine refugee claim based upon their opposition
to the regime of Saddam Hussein. In any event, it
is difficult to believe that if the applicants were
intent upon subversion that they would enter
Canada with identifying pamphlets, and readily
provide immigration officials with a detailed histo
ry of their association with a suspect group.
I would therefore direct that the certificate be
quashed. The applicants are of course at liberty,
should incriminating evidence against either
individual come to their attention, to move again
under section 40.1, but in the present circum
stances the detainees are free to continue with
their application for refugee status.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.