Ahani V. Canada (Attorney General)

ADMINISTRATIVE LAW IN CONTEXT

CHAPTER 12

The Role of International Human Rights Norms in Administrative Law

Gerald Heckman

Edited Case 2

Ahani v. Canada (Attorney General)

Ahani v. Canada (Attorney General)

58 O.R. (3d) 107

Ontario Court of Appeal

February 8, 2002

JUDGES: Laskin, Charron and Rosenberg JJ.A.

LASKIN J.A. (CHARRON J.A. concurring): —

(…)

B. Background

1. The deportation proceedings

[6] Ahani is now 37 years old. He came to Canada from Iran in October 1991 and was declared a Convention refugee in April 1992.

[7] Soon after Ahani's arrival in Canada, CSIS (the Canadian Security Intelligence Service) suspected that he was a terrorist and a trained assassin. CSIS believed that Ahani was a member of the Iranian Ministry of Intelligence Security ("MOIS"), which sponsors a wide range of terrorist activities, including the assassination of political dissidents around the world, and that he had received specialized military training from MOIS.

[8] Because the government believed Ahani was a terrorist, it took steps to deport him. In doing so, it followed the four-step deportation procedure held to be constitutionally valid by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 S.C.C. 1, 90 C.R.R. (2d) 1, released concurrently with its decision in Ahani.

[9] In June 1993, after receiving a report from CSIS, the Solicitor General and Minister of Citizenship and Immigration filed a security certificate under s. 40.1 of the Immigration Act, R.S.C. 1985, c. I-2. This was the first step in the proceedings to deport Ahani. The certificate claimed that Ahani should be removed from Canada because he is a member of a terrorist organization and has engaged in or will engage in terrorism. On the issuance of the certificate, Ahani was arrested and detained in custody, where he has remained to this day.

[10] Once the security certificate was filed, the second step required the Federal Court to determine whether the certificate was reasonable. The designated judge, Denault J., heard evidence from CSIS that Ahani was a threat to the author Salman Rushdie when he visited Toronto, and to other dissidents in Canada. CSIS also led evidence to show that, while in Europe in 1992, Ahani had participated in a plot to assassinate an Iranian dissident. Denault J. concluded that "most if not all the facts sustaining the Service's allegations against the Respondent were established." He rejected Ahani's evidence as not being credible. Denault J. thus concluded that the certificate was reasonable. His decision could not be appealed or judicially reviewed.

[11] The Federal government then took the third step in the deportation proceedings. It held a deportation hearing. An immigration adjudicator found Ahani to be inadmissible to Canada because reasonable grounds existed to believe that he was a member of a terrorist organization and that he had engaged in or would engage in terrorism. On April 28, 1998, he was ordered deported.

[12] The Minister then took the fourth and final step in the deportation proceedings against Ahani. She told him that she intended to issue an opinion under s. 53(1)(b) of the Act that he "constitutes a danger to the security of Canada". He was notified of the case against him and given an opportunity to make written submissions. Ahani did make submissions denying that he was an assassin and claiming that he would be at risk of torture in Iran for having made a refugee claim and for having disclosed information to Canadian authorities about his work with MOIS.

[13] The Minister, however, rejected his submissions. On August 12, 1998, she issued a danger opinion under s. 53(1)(b). She held that his deportation to Iran would only expose him to a "minimal risk" of harm and that the danger to the security of Canada outweighed this minimal risk.

2. Ahani's court challenges

[14] Ahani challenged the Minister's decision and asked for a new deportation hearing. McGillis J. of the Federal Court found ample evidence to support the Minister's opinion that Ahani constituted a danger to the security of Canada. She dismissed his application for judicial review, which had included a challenge to the constitutionality of the deportation proceedings. Ahani's appeals to the Federal Court of Appeal and then to the Supreme Court of Canada were also dismissed.

[15] In dismissing Ahani's appeal, the Supreme Court of Canada made four important findings:

(i) / On any standard of review, the Minister's opinion that Ahani was a danger to the security of Canada was amply supported by the evidence;
(ii) / The Minister's decision that Ahani would be exposed to a minimal risk of harm in Iran was "unassailable";
(iii) / Ahani "has not cleared the evidentiary threshold required to access the s. 7 protection guaranteed by the [Charter]"; and
(iv) / Ahani was accorded procedural fairness consistent with the principles of fundamental justice in s. 7 of the Charter.

3. Ahani's communication to the United Nations Human Rights Committee

[16] Having exhausted his remedies in Canada, Ahani has now sought relief in an international forum. He has petitioned the Committee under the Optional Protocol to the International Covenant on Civil and Political Rights. Although Canada is a party to the Covenant and to the Protocol, it has not incorporated either into its domestic law.

[17] Nonetheless, under Article 1 of the Protocol, each state party to the Covenant that has also signed the Protocol has agreed, by doing so, to recognize the competence of the Committee to receive and consider communications from individuals claiming that the state party has violated their rights under the Covenant. Article 2 of the Protocol expressly permits individuals who claim their rights under the Covenant have been violated and who have exhausted all available domestic remedies to submit a written communication to the Committee for consideration. Ahani has submitted a written communication. He maintains that his deportation to Iran will violate his right to life, will subject him to torture or to cruel [and] inhuman treatment or punishment and to arbitrary detention, and will deny him a fair trial, all contrary to the Covenant.

[18] The Committee's rules of procedure contain an interim measures provision -- Rule 86 -- permitting the Committee to express to a party state its view that interim measures may be desirable pending the Committee's consideration of an individual's communication. An interim measures request does not imply a determination of the merits of a communication, but is made to avoid irreparable damage to the victim of an alleged violation of the Covenant. Here, the Committee has invoked Rule 86 and has requested that Canada not deport Ahani until it has had an opportunity to consider his allegations, "in particular those that relate to torture, other inhuman treatment or even death as a consequence of the deportation".

[19] Canada has refused the Committee's request. Ahani therefore applied for an injunction to prevent his deportation until the Committee has considered his communication. In dismissing Ahani's application, Dambrot J. held that "if there is a right protected by s. 7 of the Charter not to have the outcome of any pending appellate or other legal process preempted by executive action, it does not extend to an analogous legal process such as a petition to an international body whose advice is not binding domestically." He also held that the Optional Protocol did not create any "legitimate expectation not to be deported pending consideration of a communication by the Committee". He concluded that Ahani has no right to remain in Canada pending consideration of his petition.

C. Discussion

[Justice Laskin held that the Superior Court judge had properly assumed jurisdiction to hear Ahani’s injunction request rather than declining jurisdiction in favour of the Federal Court, which had no greater expertise on the constitutional issues raised by Ahani’s application.]

2. Did Dambrot J. err in dismissing Ahani's application for an injunction?

[22] I should say at the outset that I agree with the result reached by Dambrot J. and generally with his reasons. In these reasons, I will focus on the additional points on which I rely to dismiss the appeal.

(a) / Does s. 7 of the Charter guarantee Ahani the right to remain in Canada until the Committee has considered his communication?

[23] Ahani's argument for an injunction rests mainly on s. 7 of the Charter, which states:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Ahani's submissions focus on the principles of fundamental justice. But these principles are not engaged unless Ahani first demonstrates a deprivation of life, liberty or security of the person. According to the respondents, the Supreme Court's decision shows that Ahani's s. 7 rights are not threatened.

[24] Certainly Ahani's mere removal from Canada does not establish a deprivation. Convention refugees and other non-citizens of Canada do not have an unqualified constitutional right to remain in this country. See Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, 72 C.C.C. (3d) 214. To trigger the principles of fundamental justice, Ahani must show a potential risk of serious harm if he is deported to Iran. But the Supreme Court of Canada has found the Minister's opinion that he faces only a minimal risk of harm "unassailable". The Supreme Court, therefore, concluded that Ahani had "not cleared the evidentiary threshold required to access . . . s. 7 protection". I interpret this conclusion to mean that Ahani had not shown a potential risk of deprivation to his life, liberty or security of the person. Thus, the respondents contend that Ahani's communication to the Committee is premised on a collateral attack on the Supreme Court's decision.

[25] Ahani's answer is that the Supreme Court dealt only with his return to torture, that his communication to the Committee is more broadly based, and that his status as a Convention refugee -- which Canada has never sought to revoke -- shows a potential deprivation of his right to security of the person sufficient to permit him to rely on the principles of fundamental justice in s. 7.

[26] Ahani's communication to the Committee rests on a fear of inhuman treatment, or even death, as well as on a fear of torture. Still, one might reasonably read the Supreme Court's finding that he will be exposed to a minimal risk of "harm" to include all these forms of punishment. Moreover, the Committee's decisions show that it will not evaluate the facts and evidence in a particular case. That evaluation, according to the Committee, should be left to the domestic courts. See Communication No. 215/1986 and Communication No. 485/1991.

[27] But even accepting a broad reading of the Supreme Court's finding, Ahani is still a Convention refugee. This court must therefore recognize that he still has a well-founded fear of persecution if returned to Iran. That is enough to trigger his s. 7 rights. See Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422. Thus, I will accept Ahani's position and assume that he has demonstrated that his return to Iran will threaten to deprive him of his right to security of the person under s. 7 of the Charter. In my view, however, even if Ahani's s. 7 rights are at stake, no principle of fundamental justice entitles him to remain in Canada until his communication is considered by the Committee.

[28] Ahani contends that the principles of fundamental justice include the right to remain in Canada until his international law remedies have been exhausted. Thus, he argues that Canada will violate the principles of fundamental justice if it does not accede to the interim measures request.

[29] In support of his position, Ahani makes one main submission. He submits that once Canada grants an individual right, as it did by signing the Covenant and the Protocol, it must ensure a fair process and an effective remedy. Deporting Ahani to Iran while the Committee is considering his communication denies him procedural fairness and an effective remedy. A domestic injunction, according to Ahani, is required to preserve an effective remedy in international law.

[30] Ahani acknowledges that he cannot point to any caselaw supporting his position. But he asks us to rely on the now well-established principles that Charter protections are to be read generously, that the content of procedural fairness is greater the more vital the interest at stake, and that Canada's international human rights commitments are an indicator, even an important indicator, of the scope of the principles of fundamental justice. I am not troubled by the absence of any supporting caselaw for there is never any precedent until something is done for the first time. And I can readily accept the broad interpretative principles on which Ahani relies. In my view, however, they do not assist him.

[31] The content of the principles of fundamental justice can only be determined by balancing individual and state interests. Here, Ahani's interest is reflected in the opportunity to seek the Committee's views on whether Canada's treatment of him breached the Covenant. Canada's interest is reflected in two undisputed facts -- two facts that show what Ahani seeks is not a principle of fundamental justice. The first fact is that Canada has never incorporated either the Covenant or the Protocol into Canadian law by implementing legislation. Absent implementing legislation, neither has any legal effect in Canada. Of course, Canada's international human rights commitments may still inform the content of the principles of fundamental justice under s. 7 of the Charter. But Ahani is not merely asking this court to interpret s. 7 in a way that is consistent with international human rights norms. Instead, he seeks to use s. 7 to enforce Canada's international commitments in a domestic court. This he cannot do.

[32] A further answer to Ahani's submission is found in the nature of Canada's international commitment under the Covenant and the Protocol. The nature of that commitment is the second undisputed fact. In signing the Protocol, Canada did not agree to be bound by the final views of the Committee, nor did it even agree that it would stay its own domestic proceedings until the Committee gave its views. In other words, neither the Committee's views nor its interim measures requests are binding on Canada as a matter of international law, much less as a matter of domestic law. The party states that ratified the Covenant and the Optional Protocol turned their minds to the question of whether they should agree to be bound by the Committee's views, or whether they should at least agree to refrain from taking any action against an individual who had sought the Committee's views until they were known. They decided as a matter of policy that they should not, leaving each party state, on a case-by-case basis, free to accept or reject the Committee's final views, and equally free to accede to or not accede to an interim measures request.

[33] To give effect to Ahani's position, however, would convert a non-binding request, in a Protocol which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court, and more, into a constitutional principle of fundamental justice. Respectfully, I find that an untenable result.

[34] The principle that international treaties and conventions not incorporated into Canadian law have no domestic legal consequences has been affirmed by a long line of authority in the Supreme Court of Canada. For example, in Capital Cities Communications Inc. v. Canada (Radio-Television and Telecommunications Commission), [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609, the court considered the effect of the Inter-American Radiocommunications Convention of 1937, which Canada had ratified but not incorporated into its domestic law. Writing for a majority of the court, Laskin C.J.C. held, at p. 173 S.C.R., "[t]here would be no domestic, internal consequences unless they arose from implementing legislation giving the Convention a legal effect within Canada." And more recently in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at p. 861, 174 D.L.R. (4th) 193, the full court agreed with L'Heureux-Dubé J. that "[i]nternational treaties and conv entions are not part of Canadian law unless they have been implemented by statute."

[35] Moreover, that both the Committee's final views and its interim measures requests are not binding or enforceable in international law is evident from the wording of the Protocol and the Committee's Rule 86, from the Committee's own pronouncements, from the opinions of recognized international law scholars and from caselaw.

[36] Both the Protocol and Rule 86 use permissive language and neither has an enforcement mechanism. Under Article 5(4) of the Protocol, the Committee does not decide on an individual's communication. Instead, "[t]he Committee shall forward its views to the State Party concerned and to the individual"

(emphasis added). Rule 86 similarly provides:

The Committee may, prior to forwarding its view on the communication to the State party concerned, inform that State of its views as to whether interim measures may be desirable to avoid irreparable damage to the victim of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its views on interim measures does not imply a determination on the merit of the communication.

[37] The international community has agreed to binding obligations in other treaties. But in the Covenant and the Protocol, it made a policy decision to do otherwise. David Kretzmer, a member of the Human Rights Commission, put it this way: