JUDGES AND COURTS |
Charkaoui (Re)
DES-3-03
2004 FC 624, Noël J.A.
28/4/04
26 pp.
Motion for disqualification by Mr. Charkaoui against designated Judge--Applicant based claim on apprehension designated Judge might not be completely impartial in continuation of ongoing proceeding and asked he be disqualified--Standard applicable to motion for disqualification stated in R. v. S. (R.D.), [1997] 3 S.C.R. 484 --Standard that of informed reasonable person with knowledge of all facts of situation, aim being to consider whether in such circumstances judge demonstrated bias or perceived bias--Presumption of judicial integrity such that it allows judge to act and make rulings in circumstances where he or she has already acquired knowledge in earlier proceedings and decisions involving same parties--It can be seen from careful reading of Immigration and Refugee Protection Act, ss. 76-85 that Parliament expressly contemplated possibility designated judge would hear "the matter", that is, determine reasonableness of certificate and undertake review of reasons justifying detention--Parliament thus intended designated judge to rule on these two aspects of matter--Intention duly expressed by Parliament was as far as possible to entrust to one designated judge "the matter" arising out of filing of certificate in Federal Court and signature by Ministers of warrant for arrest and detention of person concerned--Careful reading of Act, ss. 33, 34, 80(1),(2), 82, 83 indicates important difference between functions of determining reasonableness of certificate and that of reviewing continued detention--Review of reasonableness of certificate and assessment of risk, which serve as basis for concluding whether detention should be continued, two separate exercises with different purposes--Separate functions which ultimately lead to different conclusions--Act, s. 83(3) asks designated judge to assess danger, and having made assessment, to consider release subject to conditions and sureties--Danger not assessed in vacuum--Applicant alleged six facts creating apprehension of bias--In his opinion, six facts as a whole created apprehension of bias or bias--Careful review of six facts led to conclusion did not establish reasonable apprehension of bias or perceived bias--Motion dismissed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33, 34, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85.