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Ahani v. Canada. Communication No. 1051/2002. UN Doc. CCPR/C/80/D/1051/2002

Published online by Cambridge University Press:  27 February 2017

Gerald Heckman
Gerald Heckman*
Affiliation:
Osgoode Hall Law School, York University, Ontario, Canada
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Type
International Decisions
Information
American Journal of International Law , Volume 99 , Issue 3 , July 2005 , pp. 669 - 675
Copyright
Copyright © American Society of International Law 2005

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References

1 Ahani v. Canada, Communication No. 1051/2002, UN Doc. CCPR/C/80/D/1051/2002 (2004) [hereinafter Ahani (Human Rights Committee)].

2 July 28, 1951, 189 UNTS 137. Canada has ratified the Convention.

3 December 16, 1966, 999 UNTS 171 [hereinafter ICCPR]. Canada has ratified both the Covenant and its (first) Optional Protocol, infra note 4.

4 December 16, 1966, 999 UNTS 302.

5 R.S.C., ch. 1-2, §40.1 (1985). Security certificates are now governed by the Immigration and Refugee Protection Act, S.C., ch. 27, §§76–87 (2001). Canadian statutes and court decisions are available online at <http://www.lexum.umontreal.ca/>.

6 His ruling on the certificate’s reasonableness is final and not subject to appeal, constitutes conclusive proof that the detainee was inadmissible to Canada, and authorizes his continued detention pending removal, subject to detention review 120 days after the issuance of a removal order.

7 Ahani v. Canada, [1995] 3 F.C. 669 (T.D.), aff’d [1996] F.C.J. No. 937 (C.A.), leave to appeal dismissed [1996] S.C.C.A. No. 496.

8 Re Ahani, 146 F.T.R. 223, paras. 14–15 (1998).

9 Immigration Act §53(1 )(b).

10 [2000] F.C.J. No. 53 (C.A.), aff’g [1999] F.C.J. No. 1020 (T.D.), aff’d [2002] 1 S.C.R. 72 [hereinafter Ahani (Supreme Court)].

11 [2002] 1 S.C.R. 3, para. 127.

12 Id., paras. 122–27.

13 Ahani (Supreme Court), supra note 10, para. 2.

14 Id., para. 19.

15 Ahani v. Canada (Attorney Gen.), 58 O.R.3d 107, paras. 31-33 (C.A. 2002), leave to appeal dismissed [2002] S.C.C.A. No. 62.

16 Ahani (Human Rights Committee), supra note 1, paras. 8.1–.2.

17 Id., paras. 5.2–.3.

18 Art. 9(4) entitles a detainee “to take proceedings before a court, in order that that court may decide without delay on the lawfulness of the detention and order his release if the detention is not lawful.”

19 Ahani (Human Rights Committee), supra note 1, para. 10.4.

20 In addition to the joint dissent by Sir Nigel Rodley, Roman Wieruszewski, and Ivan Shearer, Nisuke Ando noted that the delay could be explained by the complexity of the facts involved in expulsions for national security reasons and by the need to ensure that the proceedings were conducted fairly.

21 Ahani (Human Rights Committee), supra note 1, para. 10.5. Article 13 provides:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Article 14(1) provides, in part: “In the determination of... his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

22 Ahani (Human Rights Committee), supra note 1, para. 10.18.

23 Id., para. 10.9.

24 Id., para. 10.7. Nisuke Ando dissented on this point and appeared to accept that it was appropriate for Canada to require that before granting Ahani enhanced procedural safeguards, he needed to establish a prima facie case that he faced a substantial risk of torture.

25 Id., para. 10.6.

26 Id., para. 10.7.

27 Id., para. 10.8.

28 This view is well-founded. See Harrington, Joanna, Punting Terrorists, Assassins and Other Undesirables: Canada, the Human Rights Committee and Requests for Interim Measures of Protection, 48 McGill L.J. 55 (2003)Google Scholar.

29 The dissenting opinion of Ontario Court of Appeal Justice Mark Rosenberg, who would have recognized Ahani’s right to seek an injunction preventing his removal until the Committee had presented its views on his communication, is apposite:

Canada is not harbouring terrorists or setting itself up as a haven for terrorists. The appellant has been in jail for over eight years. He seeks the views of a committee established in accordance with a United Nations Covenant. If Canada is concerned that the Optional Protocol will be used as a vehicle to shield terrorists, it can denounce the Protocol. . . . [The] Committee is well positioned to balance the competing values in protecting Convention refugees and the international obligation to eradicate terrorism.

Ahani v. Canada (Attorney Gen.), 58 O.R.3d 107, para. 101 (C.A. 2002), leave to appeal dismissed [2002] S.C.C.A. No. 62. By expediting its determinations concerning communications filed by detained petitioners or involving national security, the Committee could encourage state compliance with its requests for interim measures.

30 Supra note 2; Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 228 (1993).

31 Human Rights Committee, General Comment No. 15, The Position of Aliens Under the Covenant, para. 10, UN Doc. A/41/40, Annex VI (1986).

32 While Article 13 does not expressly prescribe an oral hearing, it is doubtful that in an expulsion proceeding premised upon doubts concerning his credibility, an alien could effectively defend himself without appearing in person before the competent authority to dispel those doubts.

33 Ahani (Human Rights Committee), supra note 1, para. 3.1.

34 Under the European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, ETS No. 5, 213 UNTS 222, the availability of judicial review of an administrative decision does not ensure access to an “independent” tribunal. See W. v. United Kingdom, 10 Eur. H.R. Rep. 29 (1987)Google Scholar.

35 See, e.g., Ahani (Human Rights Committee), supra note 1, para. 4.16.

36 Pieter, van Dijk, The Interpretation of “Civil Rights and Obligations” by the European Court of Human Rights: One More Step to Take, in Protecting Human Rights: The European Dimension: Studies in Honourof Gérard Wiarda 131, 137 (Matscher, Franz & Petzold, Herbert eds., 1990)Google Scholar.

37 Weissbrodt, David, The Right to a Fair Trial Under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights 51 (2001)Google Scholar.

38 Y.L. v. Canada, Communication No. 112/1981, UN Doc. A/41/40, Annex IX, at 145, paras. 9.4–.5.

39 Id., para. 9.4.

40 See Casanovas v. France, Communication No. 441/1990, paras. 5.2, 7.4, UN Doc. CCPR/C/51/D/441/1990 (1994).

41 Pons v. Spain, Communication No. 454/1991, para. 9.6, UN Doc. CCPR/C/55/D/454/1991 (1995).

42 Kazantzis v. Cyprus, Communication No. 972/2001, para. 6.5, UN Doc. CCPR/C/78/D/972/2001 (2003). Such proceedings do not determine rights and obligations in a suit at law.