Digests

Almrei v. Canada (Minister of Citizenship and Immigration)

DES-5-01

2005 FC 1645, Layden-Stevenson J.

5/12/05

176 pp.

Applicant, detained since 2001 as result of security certificate, applied for review of detention pursuant to Immigration and Refugee Protection Act, s. 84(2)--Recital of facts, public evidence, previous testimony, positions of parties--Focus of Act, s. 84(2) whether or not foreign national (i.e. applicant) will be removed within reasonable time--If evidence removal will not occur within reasonable time, necessary to consider whether release would pose danger to national security, safety of any person--Conditions of detention, coupled with lengthy detention, may be such that in some circumstances, "within reasonable time" taking significance of "urgency"--Here, applicant's detention lengthy, and he has been held in solitary confinement for most of detention in institution designed for short-term incarceration--These conditions unacceptable--Because delay in effecting applicant's removal primarily a result of his pursuit of legal remedies to prevent it, Court having discretion to discount some or all of resulting delay--However, because of unacceptable detention conditions, Court not exercising that discretion--Deportation not possible until Act, s. 115(2)(b) danger opinion re: applicant completed--Preparation of that opinion likely to take more time as result of risk of deportation to torture--Also, hearing of applicant's appeal before S.C.C. in related matter several months away, arguable applicant will not be removed before then--For these reasons, applicant's removal not imminent, will not occur within reasonable time--First criterion for release met--However, applicant's release would constitute danger to national security, safety of any person because of his participation in jihad, document forgery--As to meaning of phrase "danger to the security of Canada", guidance derived from comments of S.C.C. in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3--Here, undisputed evidence pre-eminent terrorist threat to North America emanating from jihadist movement--Question whether applicant adopted Islamic extremism--Based on evidence (e.g. applicant's association with Islamic fundamentalists, frequent returns to terrorist training camps), applicant's participation in jihad gave rise to objectively reasonable suspicion applicant adopted Islamic extremist ideology espoused by Usama bin Laden--Evidence in present instance also gave rise to objectively reasonable suspicion applicant participated in network involved in forged documentation--Fact terrorists rely on false documentation to facilitate travel undisputed--Combination of applicant's participation in jihad, adoption of Islamic extremist ideology espoused by Usama bin Laden, participation in network involved in forged documentation leading to conclusion applicant danger to national security, safety of any person-- Passage of time combined with severance of contact, imposition of conditions, not neutralizing danger--No mechanisms ensuring applicant's compliance with conditions Court could order--As such, applicant could not be released--Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 84(2), 115(2)(b).