Ahani v. Canada ( Minister of Citizenship and Immigration )
DES-4-93
Denault J.
15/3/99
13 pp.
Application for release from detention-Under Immigration Act, s. 40.1(8), person detained pursuant to certificate issued under s. 40.1(1), which has not been quashed by Court, may apply for release from detention if removal not effected within 120 days of issuance of removal order-Under s. 40.1(9) Court can order person's release if satisfied (a) applicant will not be removed from Canada within reasonable time, (b) release would not be injurious to national security or to safety of persons-Applicant detained since 1993 by virtue of certificate based on security reports stating member of inadmissible class of persons as described in anti-terrorism provisions-Matter referred to Federal Court of Canada in 1993 for determination of certificate's reasonableness-Applicant challenging constitutional validity of statutory scheme provided in s. 40.1-Not finally disposed of until 1997-Certificate found to be reasonable in February 1998-Removal order made in April 1998-Minister of Citizenship and Immigration issuing opinion applicant presenting danger to security of Canada in August 1998-When Minister attempting to effect removal, applicant initiating proceedings to stay deportation, constitutional challenge to anti-terrorism provisions, obtaining interim injunction preventing removal pending determination of this action-As applicant's detention allegedly warranted to preserve safety of persons in Canada, no practical purpose served in context herein in determining whether "national security" criterion so vague as to be unconstitutional-Onus of showing removal will not occur within reasonable time, release would not be injurious to national security or to safety of persons, on applicant-As right to apply encompassed in s. 40.1(8) clearly belonging to "person . . . detained under s. 40.1(7)", applicant entitled to bring application for release, therefore bearing onus of demonstrating why release complying with statutory criteria-That burden on applicant supported by s. 40.1(9) stipulation detained person may be released from detention if judge satisfied person will not be removed within reasonable time and that release would not be injurious to national security or to safety of persons-Had Parliament intended to put onus on respondents, would have put obligation in positive, instead of negative, form-As to standard of proof, judge should not order release if satisfied reasonable grounds to believe applicant not meeting statutory criteria-Pursuant to s. 40.1(7)(a) certificate previously reviewed by Court conclusive proof applicant person reasonable grounds to believe engaged, or will engage, in terrorism, or is, or was member of organization reasonable grounds to believe is, or was, engaged in terrorism-In so far as application for release not hearing de novo on merit of status of applicant, but only on question of whether should be released on terms and conditions as long as meeting criteria of s. 40.1(9)(a), (b), judge bound by previous determination of reasonableness which is conclusive proof person threat to Canada-Removal not effected within 120 days because of applicant's desperate actions to avoid deportation-Minister ready to remove applicant, and will do so within days once no more legal roadblocks-As first criterion not met, unnecessary to determine whether applicant satisfying second, since both must be met before Court can order release-Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31).