Ahani v. Her Majesty the Queen, The Attorney General of Canada et al. [Indexed as: Ahani v. Canada (Attorney General)]

58 O.R. (3d) 107

[2002] O.J. No. 431

Docket Nos. C37565 and M28156

Court of Appeal for Ontario

Laskin, Charron and Rosenberg JJ.A.

February 8, 2002

• Application for leave to appeal to the Supreme Court of Canada dismissed May 16, 2002 (L'Heureux-Dubé (dissenting), Bastarache and Binnie JJ.). S.C.C. File No. 29058. S.C.C. Bulletin, 2002, p. 781.

Charter of Rights and Freedoms -- Fundamental justice -- Deportation -- Convention refugee ordered deported to Iran after Minister of Citizenship and Immigration issued opinion under s. 53(1)(b) of Immigration Act that refugee constituted danger to security of Canada -- Refugee exhausted his remedies under Canadian law -- Supreme Court of Canada held that refugee was accorded procedural fairness and that he would be exposed to minimal risk of harm if deported to Iran -- Refugee filed communication with United Nations Human Rights Committee for relief under Optional Protocol to International Covenant on Civil and Political Rights -- Optional Protocol ratified by Canada but not incorporated into Canadian domestic law -- Committee made "interim measures" request for stay of deportation order until it had considered refugee's communication -- Canada refused to accede to request -- Refugee did not have right under s. 7 of Charter to remain in Canada until he had exhausted his internation al law remedies -- Refugee did not have legitimate expectation of not being deported to Iran pending Committee's consideration -- Immigration Act, R.S.C. 1985, c. I-2, s. 53(1)(b) -- Canadian Charter of Rights and Freedoms, s. 7.

The appellant, an Iranian citizen who was determined to be a Convention refugee, was ordered deported from Canada on the basis that he was 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. The Minister of Citizenship and Immigration informed him that she intended to issue an opinion under s. 53(1)(b) of the Immigration Act that he constituted a danger to the security of Canada. He was notified of the case against him and given an opportunity to make written submissions. He made submissions 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 for the Iranian Ministry of Intelligence Security. The Minister issued a danger opinion under s. 53(1)(b). The appellant's application for judicial review was dismissed, and that decision was affirmed by the Federal Court of Appeal. The Supreme Court of Canada dismissed the appellant's appeal, holding that he was accorded procedural fairness consistent with the principles of fundamental justice and that the Minister's decision that he would be exposed to a minimal risk of harm in Iran was unassailable. Having exhausted his domestic remedies, the appellant filed a communication with the United Nations Human Rights Committee for relief under the Optional Protocol to the International Covenant on Civil and Political Rights, which Canada has ratified but not incorporated into its domestic law. The Committee made an "interim measures" request that Canada stay the deportation order until it had considered the appellant's communication. The interim measures request was not binding on Canada and Canada refused to accede to it. The appellant applied to the Superior Court for an injunction restraining his deportation pending the Committee's consideration of his communication. The application judge dismissed the appl ication. The appellant appealed. The respondents cross-appealed, asking for a stay of proceedings on the ground that the application judge should not have assumed jurisdiction but instead should have deferred to the Federal Court.

Held, the appeal and cross-appeal should be dismissed.

Per Laskin J.A. (Charron J.A. concurring): The application judge did not err in assuming jurisdiction on the basis that the application raised no immigration issues, but constitutional issues over which the Federal Court had no greater expertise than provincial superior courts.

The principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms did not guarantee the appellant the right not to be returned to Iran until the Committee had considered his communication. Section 7 of the Charter cannot be used to enforce Canada's domestic commitments in a domestic court. To give effect to the appellant's position would have the untenable effect of converting 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. 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. 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 Pro tocol and the Committee's Rule 86 (the interim measures procedure), from the Committee's own pronouncements, from the opinions of recognized international law scholars and from caselaw. The appellant's right to remain in Canada ended with the Supreme Court of Canada's decision. And, as the Supreme Court of Canada found, throughout the entire deportation proceedings he was accorded full procedural fairness, consistent with the dictates of fundamental justice in s. 7 of the Charter. He was not entitled to any more than that.

The appellant did not have a legitimate expectation of not being deported to Iran pending the Committee's consideration. Nothing in Canada's past practice with interim measures requests or in its dealings with the appellant could give rise to a legitimate expectation that it would permit the appellant to remain in the country until the Committee considered his communication. At its root, the doctrine of legitimate expectations protects participatory expectations derived from consistent patterns of previous behaviour or from an undertaking given to an aggrieved party. Canada, however, has no consistent practice of acceding to interim measures requests. Moreover, the appellant was seeking the substantive right to remain in Canada until the Committee delivered its views, and the doctrine of legitimate expectations does not create substantive rights.

The appellant's deportation order was stayed for 30 days to permit him to file a motion for leave to appeal in the Supreme Court of Canada.

Per Rosenberg J.A. (dissenting): The appellant's security of the person was implicated by his imminent deportation to Iran, a place where, according to the Immigration and Refugee Board, he had a well-founded fear of persecution. Where the legislature has established a statutory right to review a decision that could affect the security of the person, it is a principle of fundamental justice that the state cannot unreasonably frustrate that right. This principle of fundamental justice can be applied by analogy to the process permitted by the Covenant and the Protocol. Individuals within Canada facing a deprivation of their right to life, liberty or security of the person have a right under s. 7 of the Charter, within reason, to have their petition reviewed by the Human Rights Committee free from any executive action that would render this review nugatory. By signing the Protocol the federal government has conferred jurisdiction upon the Committee. The principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law goes only so far as to affirm that the Covenant and the Protocol do not create rights in the appellant that can be enforced in a domestic court. But the appellant did not seek such an application of the Covenant and the Protocol. He claimed only the limited procedural right to reasonable access to the Committee, upon which the federal government has conferred jurisdiction. The government, having held out this right of review, however limited and non-binding, should not be entitled to render it practically illusory by returning the appellant to Iran before he has had a reasonable opportunity to access it. It is a principle of fundamental justice that individuals in Canada have fair access to the process in the Protocol. By deporting the appellant to Iran, the government would deprive him of that opportunity.

APPEAL from a judgment dismissing an application for an injunction.

Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, 90 C.R.R. (2d) 1; Thomas v. Baptiste (1999), 3 W.L.R. 249 (J.C.P.C.), consd Other cases referred to Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, 2002 S.C.C. 2, 90 C.R.R. (2d) 47; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Briggs v. Baptiste, [2000] 2 A.C. 40 (J.C.P.C.); Briggs v. Baptiste, [1999] J.C.J. No. 47; Capital Cities Communications Inc. v. Canada (Radio-Television and Telecommunications Commission), [1978] 2 S.C.R. 141, 36 C.P.R. (2d) 1, 81 D.L.R. (3d) 609, 18 N.R. 181; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, 90 D.L.R. (4th) 289, 135 N.R. 161, 8 C.R.R. (2d) 234, 72 C.C.C. (3d) 214; Higgs v. Minister of National Security, [2000] 2 W.L.R. 1368 (P.C.); In the case of Cruz Varas and Others (1991), Eur. Ct. H.R. Ser. A., No. 46/1990/ 237/307; Lewis v. Attorney-General of Jamaica, [2000] 3 W.L.R. 1785 (J.C.P.C.); McNabb v. U.S., 318 U.S. 332 (1942); New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, 216 N.B.R. (2d) 25, 177 D.L.R. (4th) 124, 244 N.R. 276, 552 A.P.R. 25, 66 C.R.R. (2d) 267, 50 R.F.L. (4th) 63, 26 C.R. (5th) 203; Old St. Boniface Residents Assn. v. Winnipeg (City), [1990] 3 S.C.R. 1170, 69 Man. R. (2d) 134, 75 D.L.R. (4th) 385, 116 N.R. 46, [1991] 2 W.W.R. 145, 2 M.P.L.R. (2d) 217; R. v. 974649 Ontario Inc., 2001 SCC 81, 88 C.R.R. (2d) 189 (sub nom. Ontario v. 974649 Ontario Inc.); R. v. Cunningham, [1993] 2 S.C.R. 143, 151 N.R. 161, 14 C.R.R. (2d) 234, 80 C.C.C. (3d) 492, 20 C.R. (4th) 57 (sub nom. Cunningham v. Canada); R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 18 C.R.R. (2d) 298, 86 C.C.C. (3d) 32, 25 C.R. (4th) 350 (Ont. C.A.); R. v. Johal (1998), 55 C.R.R. (2d) 149, 127 C.C.C. (3d) 273 (B.C.C.A.); R. v. Mills, [1986] 1 S.C.R. 863, 58 O.R. (2d) 543, 16 O.A.C. 81, 29 D.L.R. (4th) 161, 21 C.R.R. 76, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1, affg (1983), 43 O.R. (2d) 631, 2 D.L.R. (4th) 576, 6 C.R.R. 88, 7 C.C.C. (3d) 573 (C.A.), affg (1983), 40 O.R. (2d) 112, 144 D.L.R. (3d) 422, 3 C.R.R. 63, 2 C.C.C. (3d) 444 (H.C.J.); R. v. Morgentaler, [1988] 1 S.C.R. 30, 63 O.R. (2d) 281, 26 O.A.C. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, 31 C.R.R. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1 (sub nom. Morgentaler, Smoling and Scott v. R.); R. v. Pan, 2001 SCC 42, 200 D.L.R. (4th) 577, 270 N.R. 317, 85 C.R.R. (2d) 1, 155 C.C.C. (3d) 97, 49 C.R. (5th) 203; R. v. Robinson (1989), 70 Alta. L.R. (2d) 31, 63 D.L.R. (4th) 289, 51 C.C.C. (3d) 452, 73 C.R. (3d) 81 (C.A.) (sub nom. R. v. Dolejs); Reference re Canada Assistance Plan (British Columbia), [1991] 2 S.C.R. 525, 58 B.C.L.R. (2d) 1, 83 D.L.R. (4th) 297, 127 N.R. 161, [1991] 6 W.W.R. 1 (sub nom. Constitutional Question Act, Re); RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 60 Q.A.C. 241, 111 D.L.R. (4th) 385, 164 N.R. 1, 20 C.R.R. (2d) D-7, 54 C.P.R. (3d) 114; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 82 B.C.L.R. (2d) 273, 107 D.L.R. (4th) 342, 158 N.R. 1, [1993] 7 W.W.R. 641, 17 C.R.R. (2d) 193, 85 C.C.C. (3d) 15, 24 C.R. (4th) 281; Secretary for the Home Department v. Rehman, [2002] 1 All E.R. 122 (H.C.); Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, Re, [1985] 2 S.C.R. 486, 69 B.C.L.R. 145, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, 18 C.R.R. 30, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 36 M.V.R. 240; Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422, 58 N.R. 1, 14 C.R.R. 13, 12 Admin. L.R. 137; Tangiora v. Wellington District Legal Services Committee, [2000] 1 W.L.R. 240 (P.C.); United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 85 B.C.L.R. (3d) 1, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, 81 C.R.R. (2d) 1, 151 C.C.C. (3d) 97, 39 2C.R. (5th) 205 (sub nom. United States v. Burns) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 32(1)(a) Immigration Act, R.S.C. 1985, c. I-2, ss. 38.1, 40.1, 50(1)(a), 53(1)(b) Supreme Court Act, R.S.C. 1985, c. S-26, s. 65.1 Treaties and conventions referred to American Convention on Human Rights, O.A.S. T.S. No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984) International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, art. 2 Measures to Eliminate International Terrorism, G.A. Res. 49/60, 49 U.N. GAOR Supp. (No. 49) at 303, U.N. Doc. A/49/49 (1994) Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 59, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976, arts. 1, 2, 5(4), 12 Security Council SC/7158, 4385th Meeting (Night), 28 September 2001, Security Council Resolution 1373, S.C. Res. 1373, U.N. SCOR 56th Sess., U.N. Doc. S/7158 (2001) Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, arts. 26, 27 Authorities referred to Burgers, J.H., and H. Danelius, The United Nations Convention against Torture: A Handbook against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff Publishers, 1988) Duxbury, A., "Saving Lives in the International Court Of Justice: The Use of Provisional Measures to Protect Human Rights" (2000) 31 Cal. W. Intl. L.J. 141 Ghandhi, P.R., The Human Rights Committee and the Right of Individual Communication: Law and Practice (Brookfield, Vt.: Ashgate, 1998) Hogg, P.W., Constitutional Law of Canada, 4th ed., looseleaf (Toronto: Carswell, 1997) House of Commons (May 18, 1976) (Hon. Allan J. MacEachen) Kretzmer, D., "Commentary on Complaint Processes by Human Rights Committee and Torture Committee Members: The Human Rights Committee" in A. Bayefsky, ed., The UN Human Rights Treaty System in the 21st Century (The Hague; Boston: Kluwer Law International, 2000) Mullan D., Administrative Law (Toronto: Irwin Law, 2001) Schabas, W.A., International Human Rights Law and the Canadian Charter, 2nd ed. (Toronto: Carswell, 1996) Selected decisions of the Human Rights Committee under the Optional Protocol, Vol. 2, 17th to 32nd sessions, October 1982-April 1988 (New York: UN, 1990)

Barbara Jackman, for appellant. Donald A. McIntosh and Neeta Logsetty, for respondents. Kristin Marshall, for Amnesty International, intervenor.

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

A. Introduction

[1] The appellant Mansour Ahani is an Iranian citizen and a Convention refugee. The Minister of Citizenship and Immigration has concluded that he is also a terrorist and a danger to the security of Canada. She has ordered him deported to Iran. He challenged this deportation order, alleging that he will face torture in Iran. But with the dismissal of his appeal by the Supreme Court of Canada on January 11 of this year, he has exhausted all of his rights of review in Canada.

[2] Ahani has now filed a "communication" with the United Nations Human Rights Committee (the "Committee") for relief under the Optional Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. G.A.O.R. Supp. No. 16, U.N. Doc. A/6316 (1966), 999 UNTS 171, which Canada has ratified but not incorporated into its domestic law. The Committee has made an "interim measures" request, asking that Canada stay the deportation order until it has considered Ahani's communication. The interim measures request is not binding and Canada will not accede to it. Instead, it intends to deport Ahani immediately.

[3] Therefore, after the Supreme Court's decision, Ahani applied to the Superior Court for an injunction restraining his deportation pending the Committee's consideration of his communication. On January 15, Dambrot J. dismissed the application. Ahani now appeals to this court. On January 17, Feldman J.A. stayed his deportation order pending the appeal.

[4] Ahani makes two submissions in support of his appeal for injunctive relief. First, he submits that the principles of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms guarantee him the right not to be returned to Iran until the Committee has considered his communication. Second, he submits that he has a legitimate expectation of not being deported pending the Committee's consideration.

[5] The respondents Her Majesty the Queen, the Attorney General of Canada and the Minister of Citizenship and Immigration have cross-appealed, asking for a stay of proceedings on the ground that Dambrot J. should not have assumed jurisdiction but instead should have deferred to the Federal Court. For the reasons that follow, I would dismiss both Ahani's appeal and the respondents' cross-appeal. I would, however, grant Ahani's alternative request for a stay pending his intended application for leave to appeal to the Supreme Court of Canada.

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 SCC 1, 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

1. Did Dambrot J. err in assuming jurisdiction?

[20] Before dealing with Ahani's submissions, I shall deal briefly with the cross-appeal. The respondents acknowledge that a provincial superior court and the Federal Court have concurrent jurisdiction on constitutional issues concerning the application and enforcement of the provisions of the Immigration Act.

[21] Nonetheless, the respondents submit that the provincial superior court should decline jurisdiction in immigration matters in recognition of the Federal Court's expertise in this area of the law. Dambrot J. assumed jurisdiction, concluding that Ahani's application raised no immigration issues, but constitutional issues over which the Federal Court had no greater expertise than provincial superior courts. I agree with his conclusion. Therefore, I would dismiss the respondents' cross-appeal.

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:

The treaty system reflects the weakness of the international system. The fact that the Optional Protocol does not state that the Human Rights Committee's views under the Protocol are legally binding, and that there are no enforcement mechanisms, was a clear policy decision by the international community.

See Kretzmer, "Commentary on Complaint Processes by Human Rights Committee and Torture Committee Members: The Human Rights Committee", The UN Human Rights Treaty System in the 21st Century (The Hague; Boston: Kluwer Law International, 2000), at p. 164 (Bayefsky ed.).

[38] The Committee itself has said that its "decisions" are not binding:

It is useful to note that the Committee is neither a court nor a body with a quasi-judicial mandate, like the organs created under another international Human Rights instrument, the European Convention on Human Rights (i.e., The European Commission of Human Rights and the European Court of Human Rights). Still, the Committee applies the provisions of the Covenant and of the Optional Protocol in a judicial spirit and, performs functions similar to those of the European Commission of Human Rights, in as much as the consideration of applications from individuals is concerned. Its decisions on the merits (of a communication) are, in principle, comparable to the reports of the European Commission, non- binding recommendations. The two systems differ, however, in that the Optional Protocol does not provide explicitly for friendly settlement between the parties, and, more importantly, in that the Committee has no power to hand down binding decisions as does the European Court of Human Rights. States parti es to the Optional Protocol endeavour to observe the Committee's views, but in case of non-compliance the Optional Protocol does not provide for an enforcement mechanism or for sanctions.

See "Introduction", Selected Decisions of the Human Rights Committee under the Optional Protocol, Vol. 2 (New York: U.N., 1990), at p. 1.

[39] So too have the international scholars. As but one example, the main text on the United Nations Convention Against Torture [Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)] states:

The implementation organ created under the International Covenant on Civil and Political Rights is the Human Rights Committee, composed of eighteen persons chosen by the States Parties. This Committee, established in 1976, should not be confused with the UN Commission on Human Rights, established in 1946 by the ECOSOC and composed of States. The Human Rights Committee, too, is competent to consider complaints of States and of individuals, but cannot issue binding decisions.

See Burgers & Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff Publishers, 1988), at p. 9. See also Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Brookfield, Vt.: Ashgate, 1998); Duxbury, "Saving Lives in the International Court of Justice: The Use of Provisional Measures to Protect Human Rights", (2000) 31 Cal. W. Intl. L.J. 141; Bayefsky, supra.

[40] Finally, both the European Court of Human Rights and the Privy Council have acknowledged that the Committee's views are not binding or enforceable. See In the case of Cruz Varas and Others (1991), Eur. Ct. H.R. Ser. A, No. 46/1990/237/307 and Briggs v. Baptiste, [1999] J.C.J. No. 47, at para. 16.

[41] Ahani thus has no basis in domestic law and no basis in international law to ask a Canadian court to prevent his deportation. His right to remain in Canada ended with the Supreme Court of Canada's decision. And, as the Supreme Court of Canada found, throughout the entire deportation proceedings he was accorded full procedural fairness consistent with the dictates of fundamental justice in s. 7 of the Charter. He is not entitled to any more than that.

[42] By signing the Protocol, Canada did provide an individual like Ahani an opportunity to seek the Committee's views. But it qualified that right in two important ways. In any given case, Canada first reserved the right to reject the Committee's views, and, second, reserved the right to enforce its own laws before the Committee gave its views. In deporting Ahani, Canada is acting consistently with the terms under which it signed the Protocol. It is not denying Ahani procedural fairness or depriving him of any remedy to which he is entitled. Even under the Protocol, Ahani has no right to remain in Canada until the Committee gives its views. He can therefore hardly claim that the principles of fundamental justice give him that right.

[43] Ahani tries to buttress his position with three other arguments. First, he acknowledges that the views of the Committee under Article 5(4) of the Protocol are not binding but argues that the process should be allowed to run its course. The Committee's views have moral suasion and Canada should have the benefit of them. I accept that the Committee's views have persuasive value, though they are not binding. The evidence before this court suggests that Canada has always abided by the Committee's views.

[44] But Ahani's position is inconsistent. In acknowledging that the Committee's final views are not binding, he fails to take into account that the party states did not agree to await the Committee's views before enforcing their own laws. In asking that the process run its course, he glosses over the non-binding nature of an interim measures request. And in submitting that the process should run its course and a Canadian court should give effect to that submission by granting an injunction, Ahani seeks to turn a request by an international body -- and it is only a request -- into a constitutional obligation enforceable domestically in the provincial superior court. He cannot have it both ways. If Canada is free not to accept the Committee's views, it is also free not to accede to an interim measures request.

[45] Next, Ahani argues that by agreeing to a procedure it can choose to follow at its whim, Canada is not acting in good faith and, indeed, is acting contrary to its many pronouncements on the importance of international human rights. Ahani relies on Article 26 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, which provides that "every treaty in force is binding upon parties to it and must be performed by them in good faith." He contends that if Canada does not wish to comply with the Protocol, then it should denounce it, as it has the right to do under Article 12 [of the Protocol], instead of arbitrarily frustrating the process that it ratified.

[46] On its face, the argument that Canada will not be acting in good faith by deporting Ahani now is difficult to support. In deporting him, Canada will be enforcing its own laws and the decision of its highest court. It will be doing nothing more than it is entitled to do under the terms of the Protocol. Moreover, Canada's domestic statutory regime for deporting Convention refugees itself embodies a willingness to comply with international human rights standards. The Supreme Court's decision in Suresh, supra, adds to the statutory protections by incorporating Charter protections, in part drawn from international human rights instruments. Ahani has had the full benefit of both these statutory and Charter protections. Thus, the Government of Canada would have every reason to hold a good faith belief that deporting Ahani now would not breach its obligations under the Covenant.

[47] If, however, Canada has not acted in good faith, then it may justifiably be open to public criticism. If it falls short of the laudable goal of a full commitment to human rights conventions and treaties, other states may take it to task. But the principles of fundamental justice lie in the basic tenets of our legal system. They are found in the domain of the judiciary, the guardian of the justice system. What Ahani complains about is a matter for the court of public or international opinion, not for a court of law.

[48] At bottom, this case demonstrates the difference between the proper role of the executive and the proper role of the judiciary. Judges are not competent to assess whether Canada is acting in bad faith by rejecting the Committee's interim measures request and instead deporting Ahani immediately. Canada has many international obligations to balance, not the least of which, in the wake of what occurred last September 11, is to ensure that it does not become a safe haven for terrorists. See Measures to Eliminate International Terrorism, G.A. Res. 49/60, 49 U.N. G.A.O.R. Supp. (No. 49) at 303, U.N. Doc. A/49/49 (1994), 9 December 1994; and Security Council Resolution 7158, 28 September 2001. If the court grants relief that in effect turns a non-binding provision in an international treaty into a constitutional obligation enforceable in a Canadian court, Canada may be wary of signing a similar human rights instrument in the future. That would hardly be desirable. Yes, Canada could denounce the Prot ocol, but who is to say that that result would be preferable to remaining a party to the Protocol and deciding case by case whether to hold off enforcing its own laws until the Committee has given its views?

[49] These are all considerations that lie within the executive's expertise in foreign relations. Courts have no expertise in these matters, and in my respectful opinion, have no business intruding into them. Canada agreed to sign an international covenant and protocol that was not binding. It chose not to make these instruments part of its domestic law. It is not for the courts, under the guise of procedural fairness, to read in an enforceable constitutional obligation and commit Canada to a process that admittedly could take years, thus frustrating this country's wish to enforce its own laws by deporting a terrorist to a country where he will face at best a minimal risk of harm.

[50] Finally, Ahani argues that we should follow the recent line of authority from the Privy Council in death penalty cases out of the Caribbean. Of this line of authority, the most important judgment for Ahani is the majority speech of Lord Millett in Thomas v. Baptiste (1999), 3 W.L.R. 249 (J.C.P.C.).

[51] In that case, two men were convicted of murder and sentenced to death in Trinidad and Tobago. The Government of Trinidad and Tobago had ratified the International Covenant on Civil and Political Rights and acceded to the Optional Protocol. The government had also ratified the American Convention on Human Rights, O.A.S. T.S. No. 36, 1144 U.N.T.S. 123, which had established two bodies, the Inter-American Commission on Human Rights (the "Commission") and its judicial organ the Inter-American Court of Human Rights ("IACHR"). The Commission can receive petitions from individuals complaining of violations of the Convention and make reports and recommendations to a ratifying state. The IACHR can make binding rulings on the interpretation or application of the Convention.

[52] When the Government of Trinidad and Tobago delayed in carrying out the death sentences of the two appellants, they petitioned the Commission alleging that their human rights had been violated. The IACHR made orders requiring the government to refrain from carrying out the death sentences pending the determination of the appellants' petitions. In defiance of these orders, the Government of Trinidad and Tobago proposed to execute the appellants. They therefore sought relief in the courts. Their case went to the Judicial Committee of the Privy Council, where a majority stayed the executions pending the Commission's decision on the petitions and the government's consideration of any ruling of the IACHR or report from the Commission.

[53] Two key differences between Thomas and this case are immediately apparent. In Thomas, the two appellants had been sentenced to death; here, Ahani is to be returned to a country where he faces only a minimal risk of harm. Had Ahani faced the death penalty in Iran, different constitutional considerations may well have come into play in the Canadian court proceedings. See United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 195 D.L.R. (4th) 1. Moreover, in Thomas, the two appellants petitioned the Inter-American Commission, not the Committee, and unlike Ahani, had the benefit of orders of the IACHR.

[54] Nonetheless, Ahani takes comfort in some of the reasoning of Lord Millett. In Thomas, the Government of Trinidad and Tobago argued -- as the Attorney General of Canada has argued here -- that because the Convention was not incorporated into domestic law and because the Commission could make recommendations only, Trinidad and Tobago had no legal obligation to wait for the Commission to consider the appellants' petition. Lord Millett rejected this argument.

[55] He recognized, at p. 260 W.L.R., "the constitutional importance of the principle that international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by legislation". But he held, ibid., that the due process clause in the Constitution of Trinidad and Tobago "includes the right of a condemned man to be allowed to complete any appellate or analogous legal process that is capable of resulting in a reduction or commutation of his sentence before the process is rendered nugatory by executive action". And he concluded at pp. 260-61 W.L.R. with this enigmatic paragraph, which is fundamental to his decision, and on which Ahani relies:

In their Lordships' view, however, the applicants' claim does not infringe the principle which the government invoke. The right for which they contend is not the particular right to petition the commission or even to complete the particular process which they initiated when they lodged their petitions. It is the general right accorded to all litigants not to have the outcome of any pending appellate or other legal process pre-empted by executive action. This general right is not created by the Convention; it is accorded by the common law and affirmed by section 4(a) of the Constitution. The appellants are not seeking to enforce the terms of an unincorporated treaty, but a provision of the domestic law of Trinidad and Tobago contained in the Constitution. By ratifying a treaty which provides for individual access to an international body, the Government made that process for the time being part of the domestic criminal justice system and thereby temporarily at least extended the scope of the due process clause in the Constitution.

(Emphasis added)

[56] I confess to having difficulty understanding the reasoning in this paragraph, and especially in the last sentence. On the face of it, Lord Millett's reasoning conflicts directly with well-established Canadian law. To repeat, Lord Millett says that "[b]y ratifying a treaty which provides for individual access to an international body, the Government made that process for the time being part of the domestic criminal justice system and thereby temporarily at least extended the scope of the due process clause in the Constitution." That is not our law. In Canada, mere ratification of a treaty, without incorporating legislation, cannot make the international process part of our domestic criminal justice system. For that reason alone, I do not consider that Thomas assists Ahani's position. Moreover, I prefer the dissenting reasons of Lord Goff, which are more in line with our own law. Lord Goff said, at p. 270 W.L.R.:

This conclusion will disappoint those who contend for the application of unincorporated international human rights conventions in municipal legal proceedings so that such rights will be directly enforced in national courts as if they were rights existing in municipal law. The widest possible adoption of humane standards is undoubtedly to be aspired to. But it is not properly to be achieved by subverting the constitutions of states nor by a clear misuse of legal concepts and terminology; indeed, the furthering of human rights depends upon confirming and upholding the rule of law. Suppose that an international treaty declares certain conduct to be criminal wherever committed (and such examples exist), unless and until the Legislature of a state party to the treaty has passed a law making such conduct criminal under its municipal law, it would be contrary to due process (and in the Republic, contrary to section 4 of the Constitution) for the Executive of the state to deprive any individual of his life, liberty or property on the basis of the international treaty. It would be a clear breach of that individual's constitutional rights. An unincorporated treaty cannot make something due process: nor can such a treaty make something not due process unless some separate principle of municipal law makes it so.

(Emphasis in original)

[57] For all of these reasons, I reject Ahani's submission that the principles of fundamental justice include the right to remain in Canada until he has exhausted his international law remedies under the Covenant and the Protocol.

(b) Does Ahani have a legitimate expectation of not being deported to Iran pending the Committee's consideration?

[58] The doctrine of legitimate expectations can affect the content of the duty of procedural fairness or impose procedural fairness requirements where none would otherwise exist. The Supreme Court of Canada has recognized the doctrine in three cases -- Old St. Boniface Residents Assn. v. Winnipeg (City), [1990] 3 S.C.R. 1170, 75 D.L.R. (4th) 385, Reference re Canada Assistance Plan (British Columbia), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 and Baker, supra -- though it did not give effect to the doctrine in any of them.

[59] The doctrine is limited. It is a doctrine of procedural fairness only. It creates no substantive rights.

[60] Here, Ahani invokes the doctrine of legitimate expectations to support his contention that procedural fairness requires Canada not to deport him until the Committee has considered his communication. His reliance on the doctrine is unusual in this sense: typically individuals resort to legitimate expectations to obtain greater procedural fairness -- greater participatory rights -- from the administrative decision maker. But Ahani does not seek more procedural fairness from the Committee. He is content with the fairness of the Committee's procedures. Instead, he tries to use the doctrine of legitimate expectations to impose procedural requirements on the other party to the dispute, Canada. Even if he can overcome this obstacle, he faces two other hurdles, either of which show that he can have no legitimate expectation of remaining in Canada pending the Committee's consideration of his communication.

[61] First, nothing in Canada's past practice with interim measures requests or in its dealings with Ahani could give rise to a legitimate expectation that it would permit Ahani to remain in the country until the Committee considers his communication. At its root, the doctrine of legitimate expectations protects people's reasonable expectations in their dealings with government. In other words, it protects participatory expectations derived from consistent patterns of previous behaviour or from an undertaking given to an aggrieved party. See Mullan, Administrative Law (Toronto: Irwin Law, 2001), at pp. 177-78.

[62] Canada, however, as Ahani acknowledges, has no consistent practice of acceding to interim measures requests. In some cases it has; in others it has not. In the only other case concerning a terrorist -- Tejinder Pal Singh -- Canada did not accede to an interim measures request from the United Nations Committee Against Torture. Canada concluded that its international obligation to ensure it did not become a safe haven for terrorists required Singh's immediate removal. Thus, Canada's past practice does not assist Ahani. Nor has Canada made any undertaking to Ahani that would permit him to legitimately expect that he could remain in Canada pending the Committee's deliberations. Instead, it has sent the opposite message. It intends to deport him immediately.

[63] Ahani can have no legitimate expectation of remaining in Canada for a second reason. What he seeks is not only procedural fairness but a substantive right. He seeks the substantive right to remain in Canada until the Committee delivers its views, a process that could take years. But the law in Canada is clear: the doctrine of legitimate expectations does not create substantive rights. For either of these two reasons, I would not give effect to Ahani's claim for an injunction based on legitimate expectations. I would therefore dismiss his appeal.

3. Ahani's request for a stay pending a further application to the Supreme Court of Canada

[64] If this court should dismiss his appeal, Ahani intends to apply to the Supreme Court of Canada for leave to appeal. He has asked this court to stay his deportation order pending the determination of his leave motion in the Supreme Court. The respondents oppose the request for a stay and intend to deport Ahani immediately.

[65] Section 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26, permits this court to order a stay pending the filing of a motion for leave in the Supreme Court and I would exercise that jurisdiction in this case. Ahani has raised an important issue, and one on which the panel is divided. His counsel Ms. Jackman has undertaken to file a motion for leave to appeal promptly. Ahani remains in custody. If he is deported to Iran immediately after this court's decision, his leave motion to the Supreme Court of Canada will be rendered moot.

[66] All these considerations favour granting a stay. I would stay Ahani's deportation order for 30 days from the release of this court's decision, to permit Ahani to file his motion for leave to appeal in the Supreme Court of Canada. However, I think it appropriate that any further stay be dealt with by the Supreme Court itself in conjunction with its consideration of the motion for leave.

D. Conclusion

[67] I would dismiss the appeal and the cross-appeal. I would stay Ahani's deportation for 30 days to permit him to bring a motion for leave to appeal to the Supreme Court of Canada.

[68] ROSENBERG J.A. (dissenting): -- I agree with Laskin J.A. that Dambrot J. did not err in taking jurisdiction in this case. Regrettably, I cannot agree with his disposition of the appeal. These are my reasons.

[69] In April 1992, the Refugee Division of the Immigration and Refugee Board found that the appellant, an Iranian national, is a Convention Refugee. This means that he is a person who by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, is unable or, by reason of that fear, is unwilling to avail himself of the protection of his country of nationality. In June 1993, two Ministers of the Federal Crown filed a security certificate in the Federal Court alleging, in effect, that the appellant is a terrorist or a member of a terrorist organization. The appellant has been detained in jail since that time -- a period of almost nine years. During that time, the appellant has resisted the attempts by the federal government to remove him from Canada to Iran.

[70] The appellant has now exhausted all of his domestic remedies. However, the federal government holds out to him one last tantalizing hope. In 1976, the federal government [^1] ratified the International Covenant on Civil and Political Rights. As a result, in the words of Article 2, the federal government agreed to "respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant". This is a binding obligation. The federal government has undertaken to perform this Covenant in good faith. It has also undertaken not to invoke the provisions of its internal law as justification for failure to perform. [^2] The appellant alleges that the process by which the federal government has come to be in a position to remove him to Iran is flawed and does not accord with the Covenant. The federal government says that it has acted in accordance with the laws of Canada and points out that the Supreme Court of Canada has held that the procedures undertaken in the appellant's case accord with the guarantees in the Canadian Charter of Rights and Freedoms. However, no Canadian court is competent to pass upon the question of whether our procedure comports with the obligations set out in the Covenant.

[71] There is a body with the expertise to pass on that question. The Covenant established the Human Rights Committee. In 1976, at the same time that it ratified the Covenant, Canada ratified the First Optional Protocol to the International Covenant. In the words of Article 1 of the Protocol, the federal government bound itself to recognize the competence of the Committee to "receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant". In accordance with Article 2 of the Protocol, an individual, such as the appellant, may only submit a communication for consideration by the Committee after he has exhausted his domestic remedies.

[72] The appellant is now at that stage. He has exhausted his domestic remedies all the way to the Supreme Court of Canada. [^3] He does not want to return to Iran, where he fears persecution, until the Committee considers his communication and in the arcane language of the Protocol forwards its "views" to Canada. He hopes that the Committee will accept his submission that the process leading to his removal does not comport with the obligations in the Covenant and that the federal government will reconsider the decision to remove him. In the past, Canada and the provinces have changed legislation because of the views of the Committee. [^4]

[73] Although the federal government has committed itself to these binding obligations and has held out to the appellant and others like him the right to communicate with the Committee, it has decided to deport the appellant to Iran now. It does not want to wait for the Committee to make its decision. The respondents offer both legal and policy justifications for this stance. On the legal side, they invoke the established principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law. The Covenant, while ratified, has never been incorporated into Canadian domestic law and therefore does not create legal obligations enforceable in Canada. They point out that the views of the Committee are not legally binding on Canada, in the sense that Canada is not required to change its laws or its practices to conform to those views. They also take the position that the government is not legally bound to wait for the Committee's views. Thus, since the Covenant and the Protocol create no binding obligations in Canada, the appellant has no right, enforceable in a Canadian court, to remain in Canada while the international process takes its course.

[74] On the policy side, the respondents submit that allowing the appellant to remain in Canada conflicts with Canada's international obligation to fight terrorism. They point to the post-September 11 resolution [S.C. Res. 1373, c. 3(g)] of the United Nations Security Council that called upon all states to:

Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists . . .;

[75] The respondents are also concerned about the delay. They suggest that the Committee has a history of taking many years to communicate its views.

[76] I have found the submissions of the federal government unconvincing. In my view, the removal of the appellant at this time to Iran, a place where he, according to the Immigration and Refugee Board, has a well-founded fear of persecution, is contrary to s. 7 of the Canadian Charter of Rights and Freedoms. I would grant an injunction to prevent his removal at this time. Because of the urgency of the matter, I can only set out my reasons in summary form.

Life, Liberty and Security of the Person

[77] There is no ordinary domestic legislation now standing in the way of the appellant's removal to Iran. Although he is a Convention refugee, Canadian law permits his deportation under certain conditions and the Supreme Court of Canada has found that those conditions have been fulfilled. If the appellant is to remain in Canada any longer, it will only be because he can establish that his removal would violate his rights under the Charter. In accordance with s. 32(1)(a), the government of Canada is bound by the Charter and the courts have the power to grant to the appellant a remedy against the government if he can establish a violation of his rights. The appellant relies upon the fundamental justice guarantee in s. 7 of the Charter. Section 7 provides as follows:

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.

[78] The right to fundamental justice is not a free-standing one. The appellant must first show that his right to life, liberty or security of the person is implicated by the proposed government action. Counsel for the respondents submits that the Supreme Court of Canada has conclusively determined that the appellant's removal to Iran does not violate his right to life, liberty or security of the person. He relies upon the following statement from para. 2 of the decision of the Supreme Court in the appellant's case:

Applying the analytical framework set out in Suresh [Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1] to the facts of this case, we conclude that Ahani has not cleared the evidentiary threshold required to access the s. 7 protection guaranteed by the Canadian Charter of Rights and Freedoms. As found in Suresh, the provisions allowing the Minister of Citizenship and Immigration to deport a refugee for membership in a terrorist organization do not unjustifiably infringe Charter rights of freedom of expression and association. In this case, unlike Suresh, the Minister provided adequate procedural protections.

(Emphasis added)

[79] In my view, the respondent's submission overstates the effect of the decision of the Supreme Court. In Suresh, at para. 76, the Supreme Court held that barring extraordinary circumstances, "deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter." The court went on to hold in para. 77 that in exercising the discretion under the Immigration Act, the Minister must balance the relevant factors and that to comport with s. 7 the Minister should "generally decline to deport refugees where on the evidence there is a substantial risk of torture".

[80] The issue before the Supreme Court in the appellant's case was whether there was a reasonable basis for the Minister's finding that the appellant did not face a substantial risk of torture. According to paras. 20 and 21 of the reasons of the Supreme Court, the Minister based her decision on a report from an analyst with the Case Management Branch of the Department of Citizenship and Immigration. The analyst concluded that the "serious risk to Canadian security was outweighed against the minimal risk of harm to Ahani if returned to Iran". The Supreme Court concluded in para. 22 that the Minister applied the proper principles and took into account the relevant factors, and that there was no basis to interfere with her decision.

[81] To summarize, the Supreme Court did not find that the appellant's right to life, liberty or security of the person was not implicated by the proposed deportation to Iran. Rather, the court found that the decision to deport conformed to the principles of fundamental justice because the Minister had balanced, as she was entitled to do, the risk that the appellant would be tortured against the risk to Canadian society. There would have been no need to engage in this balancing exercise if the appellant did not face any risk to his life, liberty or security of the person.

[82] That the appellant does face a risk to his security of the person was conclusively determined in April 1992 when the Refugee Division of the Immigration and Refugee Board found the appellant to be a Convention refugee. The federal government has never moved to set aside that finding. In Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177, p. 460 D.L.R., a case concerning persons seeking Convention refugee status, Wilson J. held that security of the person "must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself". She also held that the right not to be deprived of security of the person is implicated even when the threat of physical punishment or suffering comes from a foreign state. Those rights are implicated when there is only a potential threat: United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, 151 C.C.C. (3d) 97 at pp. 321-22 S.C.R., p. 126 C.C.C.

[83] In my view, the appellant's security of the person is implicated by his imminent deportation to Iran.

The Principles of Fundamental Justice

[84] The Supreme Court of Canada has held that the legislation and the procedure that led to the Minister's decision to deport the appellant to Iran conform to the principles of fundamental justice. On what theory then can it be said that his removal at this time would violate his s. 7 rights?

[85] In Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, [1985] 2 S.C.R. 486, 23 C.C.C. (3d) 289, at p. 512 S.C.R., p. 309 C.C.C., Lamer J. described the source of the principles of fundamental justice as being in the "basic tenets and principles, not only of our judicial process, but also of the other components of our legal system". He then noted at p. 513 S.C.R., p. 310 C.C.C. the evolutionary process as the courts discover those principles:

Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system, as it evolves.

[86] In my view, where the legislature has established a statutory right to review a decision that could affect the security of the person, it is a principle of fundamental justice that the state cannot unreasonably frustrate that right. As Lord Millett said in Thomas v. Baptiste, supra, at p. 261 W.L.R.: "the right to be allowed to complete a current appellate or other legal process without having it rendered nugatory by executive action before it is completed is part of the fundamental concept of due process." I do not say that the right of effective review is absolute. Time and again, most recently in Suresh, the Supreme Court has pointed out the need to balance various interests in defining the principles of fundamental justice. For example, the state interest in protecting the public may require that steps be taken that will render the right of review nugatory for all practical purposes. Thus, there is no automatic right to bail pending appeal even if in the result the o ffender may have served the entire sentence before the appeal can be heard. See: R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.). I also do not hold that this right necessarily imposes positive obligations on the state to make the statutory right of review effective, by, for example supplying counsel, transcripts, access to legal sources and so on. Those difficult questions involving allocation of scarce resources are not raised in this case. See R. v. Robinson (1989), 70 Alta. L.R. (2d) 31, 51 C.C.C. (3d) 452, 63 D.L.R. (4th) 289 (Alta. C.A.), R. v. Johal (1998), 55 C.R.R. (2d) 149, 127 C.C.C. (3d) 273 (B.C.C.A.) and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, 177 D.L.R. (4th) 124.

[87] In Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, 85 C.C.C. (3d) 15, at pp. 590-91 S.C.R., pp. 65-66 C.C.C., Sopinka J. described the process by which principles of fundamental justice may be discerned:

Discerning the principles of fundamental justice with which deprivation of life, liberty or security of the person must accord, in order to withstand constitutional scrutiny, is not an easy task. A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles.

(Emphasis added)

[88] The principle that I have described easily meets these criteria, at least when applied in the domestic context. It would offend our societal notion of justice to allow the government to frustrate a statutory procedure for review without some reasonable justification. This principle can be applied in a manner that yields understandable results. Indeed, appellate courts do so daily in considering applications for bail pending appeal. Finally, it is a legal principle. It is not some vague generalization based only upon notions of ethics or morality. It is based on the same principle that animated such decisions as R. v. Morgentaler, [1988] 1 S.C.R. 30, 37 C.C.C. (3d) 449 at p. 70 S.C.R., p. 476 C.C.C., where Dickson C.J.C. held that as a matter of fundamental justice, "when Parliament creates a defence to a criminal charge, the defence should not be illusory or so difficult to attain as to be practically illusory." Similarly, when Parliament enacts a process for review of decisions that deprive individuals of their liberty or security of the person, the state cannot, without reason, act to render that right of review illusory or practically illusory. [^5]

[89] In my view, this principle of fundamental justice, although derived from a statutory right of review, can be applied by analogy to the process permitted by the Covenant and the Protocol. That is to say, individuals within Canada facing a deprivation of their right to life, liberty or security of the person have a right under s. 7 of the Charter, within reason, to have their petition reviewed by the Human Rights Committee free from any executive action that would render this review nugatory.

[90] Application of this principle to the process created by the Covenant and the Protocol requires a brief examination of the constitutional principles surrounding the treaty-making power. In the Anglo-Canadian system, the power to enter into and ratify international treaties such as the Covenant and the Protocol is an exercise of one of the prerogatives of the Crown. Parliament "plays no necessary role in the making of treaties": Hogg, Constitutional Law of Canada, 4th ed, looseleaf (1997), at para. 11.3(c).

[91] An aspect of the government's argument that the appellant has no right to await the decision of the Committee is the principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law. However, this principle is to protect Parliament and the people of Canada from executive action. Lord Hoffman explained the principle in Higgs v. Minister of National Security, [2000] 2 W.L.R. 1368 (P.C.) at para. 13:

The rule that treaties cannot alter the law of the land is but one facet of the more general principle that the Crown cannot change the law by the exercise of its powers under the prerogative. This was the great principle which was settled by the Civil War and the Glorious Revolution in the seventeenth century. And on no point were the claims of the prerogative more resented in those times than in relation to the establishment of courts having jurisdiction in domestic law. There have been no prerogative courts in England since the abolition of Star Chamber and High Commission. But the objection to a prerogative court must be equally strong whether it is created by the Crown alone or as an international court by the Crown in conjunction with other sovereign states. In neither case is there power to give it any jurisdiction in domestic law.

(Emphasis added)

[92] Here, however, the government seeks to invoke the non- binding principle to shield the executive from the consequences of its voluntary decision to enter into and therefore be bound by the Covenant and the Protocol. In Tangiora v. Wellington District Legal Services Committee, [2000] 1 W.L.R. 240 (P.C.) at p. 246, Lord Millett described the nature of a state's relationship with the Committee where, like New Zealand in that case, the state has signed the Optional Protocol:

[The Committee] is not an organ of a sovereign state but the creation of an international convention. Its jurisdiction over state parties is consensual. By signing the Optional Protocol New Zealand submitted to its jurisdiction, and can be said to have conferred jurisdiction upon it. But it did not cede to it its own sovereign power of adjudication over the inhabitations of New Zealand. The Human Rights Committee does not exercise the adjudicative functions of New Zealand, but its own independent jurisdiction derived from an international instrument and the submission of State parties.

(Emphasis added)

[93] So too by signing the Protocol the federal government has conferred jurisdiction upon the Committee. In my view, the non-binding principle goes only so far as to affirm that the Covenant and the Protocol do not create rights in the appellant that can be enforced in a domestic court. But, the appellant does not seek such an application of the Covenant and the Protocol. The appellant does not claim that the views of the Committee about our process for removing him would create legal rights that could be enforced in a domestic court. He claims only the limited procedural right to reasonable access to the Committee, upon which the federal government has conferred jurisdiction. He submits that the government, having held out this right of review, however limited and non-binding, should not be entitled to render it practically illusory by returning him to Iran before he has had a reasonable opportunity to access it. I agree with that submission and that it is a principle of fundamental justice that individuals in Canada have fair access to the process in the Protocol. By deporting the appellant to Iran, the government will deprive the appellant of this opportunity.

[94] I accept that the application of this principle is more difficult in this context because of the difficulty for a Canadian court to assess the merits of a communication to the Committee. However, I think there is a generally held consensus in Canada that in the human rights context an individual whose security is at stake should within reason be given the opportunity to access remedies at the international level, and that necessarily the executive should not unreasonably frustrate the individual's attempt to do so. I think this is particularly so where the individual seeks access to a body of the stature of the Committee. [^6] Lord Millett described the Committee in these terms in Tangiora at pp. 244-45 W.L.R.:

It is true that its views are not binding on the state party concerned, which is free to criticize them and may refuse to implement them. Nevertheless, as, Professor Tomuschat has observed, a state party may find it hard to reject such findings when they are based on orderly proceedings during which the state party has had a proper opportunity to present its case. The views of the Human Rights Committee acquire authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint. Moreover, there is much force in the provisional view of Thomas J. that its functions are adjudicative.

(Emphasis added)

[95] I recognize that there may be no international consensus that governments that have ratified the Optional Protocol must await the views of the Committee. But I do not see this as an obstacle to recognizing this principle of fundamental justice under the Charter. In Rodriguez at pp. 591-92 S.C.R., p. 66 C.C.C., Sopinka J. cautioned against relying upon a purely historical review for discerning the principles of fundamental justice:

It is not sufficient, however, merely to conduct a historical review and conclude that because neither Parliament nor the various medical associations had ever expressed a view that assisted suicide should be decriminalized, that to prohibit it could not be said to be contrary to the principles of fundamental justice. Such an approach would be problematic for two reasons. First, a strictly historical analysis will always lead to the conclusion, in a case such as this, that the deprivation is in accordance with fundamental justice, as the legislation will not have kept apace with advances in medical technology. Secondly, such reasoning is somewhat circular, in that it relies on the continuing existence of the prohibition to find the prohibition to be fundamentally just.

(Emphasis added)

[96] According to Sopinka J., at p. 592 S.C.R., p. 66 C.C.C., the way to avoid these problems is "not to avoid the historical analysis, but to make sure that one is looking not just at the existence of the practice itself . . . but at the rationale behind that practice and the principles which underlie it". I have attempted to do this in summary form in this part of these reasons. I have explained why the principle that international conventions are not binding in Canada unless they have been specifically incorporated into Canadian law is not a convincing rationale for limiting review of executive action. The principle that I would recognize here is based upon a simple principle of justice that where there is a right there should be a remedy, a principle enshrined in the Charter and international conventions. See for example R. v. Mills, [1986] 1 S.C.R. 863, 26 C.C.C. (3d) 481, at pp. 881-83 S.C.R., pp. 508-09 C.C.C., per Lamer J. dissenting on other grounds, and R. v. 974649 Ontario Inc., 2001 SCC 81 at para. 20, 88 C.R.R. (2d) 189.

[97] Moreover, there is some authority for this principle of fundamental justice. In a series of cases, the Judicial Committee of the Privy Council has held that, at least in capital cases, states subject to a constitutionally enshrined due process clause may be obliged to await the decision of international bodies such as the Human Rights Committee. Admittedly, those cases most often concern the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights established by the American Convention on Human Rights 1969. I also recognize that the structure established by the American Convention is somewhat different in that the Inter-American Court (but not the Commission) can in some fashion issue rulings that are binding under international law. However, I do not read those cases as turning on this peculiar aspect of the American Convention. The same reasoning has been applied where the petition is to the Human Rights Committee and where the country, such as Jamaica, has not recognized the jurisdiction of the Inter-American Court, only the Commission. See in particular Lewis v. Attorney-General of Jamaica, [2000] 3 W.L.R. 1785 (J.C.P.C.).

[98] The basis for recognizing a due process right in these circumstances is based on more fundamental principles of due process. I find particularly attractive the dissenting speech of Lord Nicholls in Briggs v. Baptiste, [2000] 2 A.C. 40 (J.C.P.C.) at para. 47, where he said that he could not accept that "the law of Trinidad and Tobago is so foreshortened that the courts of Trinidad and Tobago must stand by, powerless to act, while Briggs is executed. By acceding to the Convention, Trinidad and Tobago intended to confer benefits on its citizens. The benefits were intended to be real, not illusory. The Inter-American system of human rights was not intended to be a hollow sham or, for those under sentence of death, a cruel charade." In the same case, Lord Millett, speaking for the majority at para. 42 described the effect of the earlier decision of the Judicial Committee [the Board] in Thomas v. Baptiste:

In that case there was an outstanding dispute of fact which remained to be investigated by the Commission and if necessary decided by the Court, viz. whether the defendants had had a fair trial. If the Court were to rule that the trial had not been fair and to order that the conviction be quashed, the State would be at liberty as a matter of domestic law to ignore the order and carry out the sentence, but it is very difficult to believe that it would have done so. Trinidad and Tobago is a modern democracy which operates under the rule of law and is sensitive to its international obligations. By granting the stay in question the Board ensured that the defendants would obtain that to which they were entitled under the Constitution, the right to pursue their outstanding complaints to the point where a favourable determination was capable of leading to the quashing of their convictions or the commutation of their sentences.

(Emphasis added)

[99] I should say that I do not necessarily subscribe to all the reasons of the Judicial Committee in these cases. Like Dambrot J., I find some of the reasoning strained. [^7] I refer to these cases simply as an indication that countries with legal systems like ours have found that due process requires that individuals be given the opportunity to access these international bodies.

[100] I want to briefly comment on the policy arguments made by counsel for the respondent. As I said, counsel for the respondent submits that allowing the appellant to remain in Canada conflicts with its international obligation to fight terrorism. He drew the court's attention to the post-September 11 resolution of the United Nations Security Council that called upon all states to:

Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organizers or facilitators of terrorist acts, and that claims of political motivation are not recognized as grounds for refusing requests for the extradition of alleged terrorists . . . [^8]

(Emphasis added)

[101] I see nothing inconsistent with according the appellant access to the Committee and Canada complying with its international obligations. 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. It did not have to ratify the Protocol and many nations, such as the United States of America and the United Kingdom, have not done so. I agree with counsel for Amnesty International that the Committee is well positioned to balance the competing values in protecting Convention refugees and the international obligation to eradicate terrorism.

[102] Counsel for the respondents also seemed to imply that Canada ratified the Covenant and the Protocol because they created no enforceable obligations. He referred to an article by D. Kretzmer, "Commentary on Complaint Processes by Human Rights Committee and Torture Committee Members: The Human Rights Committee" in A.E. Bayefsky, The UN Human Rights Treaty System in the 21st Century (2000), at p. 164 where the author wrote:

States were quite willing to lay down binding standards of human rights, provided that there was no really effective enforcement mechanism to make sure that they were adhering to the standards when they chose not to do so.

[103] Counsel argues that if this court were to allow the appellant to wait in Canada for the Committee's views, this would enforce an obligation Canada did not really intend to honour and affect the common understanding of the non- enforceable nature of international treaties. I have already explained why I do not think this is the effect of the protection sought by the appellant. I also find it difficult to accept that the federal government ratified the treaty because it knew it could not be made to comply with its binding obligations. This would undermine the good faith obligation inherent in ratifying treaties. In any event, I am supported in my view that policy considerations do not stand in the way of this result by the statements by the Government of Canada such as the following, which seem to run contrary to counsel's submissions before us:

Mr. Speaker, may I just add that our becoming party to these extremely important international human rights instruments will enable us to play a more active role internationally in the human rights field and will moreover strengthen our credibility in urging other states also to become parties and to implement their provisions. [^9]

And:

A priority field of international concern and action for Canadians has been and remains that of human rights. The Government regards respect for human rights not only as a fundamental value, but also as a crucial element in the development of stable, democratic and prosperous societies at peace with each other. From the drafting of the Universal Declaration of Human Rights to that of the recently concluded Convention on the Rights of the Child, we have been in the vanguard of those fighting for international consensus to uphold human freedoms and dignity. [^10]

(Emphasis added)

And:

Respect for human rights is also a matter of basic international law. The human rights obligations of all governments find their origins in the UN Charter, which requires all United Nations members to promote universal respect for human rights, and in the 1948 Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (adopted 1966, entered into force 1976) which together constitute the International Bill of Human Rights. The promotion and protection of human rights is therefore not purely a question of values but a mutual obligation of all members of the international community . . .

Canada does not expect other governments to respect standards which it does not apply to itself. As a signatory of all the principal UN treaties on international human rights, Canada regularly submits its human rights record to review by UN monitoring bodies. It also accepts the authority of the UN Human Rights Committee to hear complaints from Canadian citizens under the Optional Protocol to the International Covenant on Civil and Political Rights. These undertakings strengthen Canada's reputation as a guarantor of its citizens' rights and enhance our credentials to urge other governments to respect international standards. [^11]

(Emphasis added)

[104] I think it would be a serious mistake for the courts to let obvious and deeply felt concerns about terrorism obscure the need to accord fundamental justice and respect for human rights to all individuals.

Content of the Principle

[105] Counsel for the respondent has raised a concern that the appellant, a terrorist and trained assassin, was claiming the right to stay in Canada for an indefinite time while the Committee considers his communication. He pointed out that some of the literature shows that the Committee, which is chronically underfunded, can take years to reach a decision.

[106] In my view, the right to access the Human Rights Committee is not absolute and the appellant may not have an unconditional right to stay in Canada indefinitely. As McLachlin J. said in Cunningham v. Canada, [1993] 2 S.C.R. 143, 80 C.C.C. (3d) 492, at pp. 151-52 S.C.R., p. 499 C.C.C.:

The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally. . . .

[107] The test for granting an interlocutory injunction can, by way of analogy, provide a sufficiently nuanced approach to meet the interests of both the applicant and the state. That test requires the court first to make a preliminary assessment of the merits of the case to ensure that there is a serious question to be tried. Secondly, the court must determine whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. See RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385, at pp. 533-34 S.C.R., p. 400 C.C.C.

[108] While domestic courts have no jurisdiction to interpret international conventions, I think that it is open to a court to make at least some preliminary assessment of the claim, if for no other reason than to screen out the obviously frivolous claims. For example, if the Committee had in identical circumstances given its view that the Canadian process complies with the Covenant, I would think it unlikely a court would find there was a serious question involved. I note that in this case, however, the Human Rights Committee has accepted the appellant's communication and in accordance with its own rules has asked Canada to refrain from deporting the appellant until the Committee has had an opportunity to consider his allegations.

[109] Further, this principle of fundamental justice may only be enforced in cases where the individual's life, liberty or security of the person interests are implicated, as in the case of a Convention refugee. The right to pursue the international remedy is not a means for delaying deportation in less serious cases. As well, it may be that the government can show in a particular case that the balance of convenience favours removal, as where the applicant poses an unacceptable risk to public security even where, as in this case, he or she is being held in custody.

[110] Finally, I would not foreclose the possibility that the government might be able to show that the Committee process will result in such an intolerable delay that the balance of convenience favours deportation. I would think, however, that would be an unusual case. Here the domestic procedures have occupied over eight years and the appellant has remained in custody throughout. Canada can hardly complain about some delay at the Committee level when it is a condition of invoking that jurisdiction that all domestic remedies have been exhausted.

Conclusion

[111] Dambrot J. held that the appellant had no right to remain in Canada pending disposition of his communication by the Committee. He therefore did not consider application of the test for granting an injunction. I think it only fair to give the government the opportunity to show that in the particular circumstances the appellant has not established that, for example, the balance of convenience favours his remaining in Canada. Accordingly, I would allow the appeal and remit the matter to the Superior Court of Justice for a hearing in accordance with these reasons. The appellant will remain in custody pending this hearing in accordance with s. 40.1 of the Immigration Act, R.S.C. 1985, c. I-2. In accordance with s. 50(1)(a), the removal order will not be executed pending the hearing in the Superior Court of Justice.

[112] I wish to conclude these reasons with this note. In Secretary for the Home Department v. Rehman, [2002] 1 All E.R. 122 (H.C.) at p. 142, Lord Hoffman pointed out that the events of September 11, 2001 are a reminder that "in matters of national security the cost of failure can be high." He also stated that decisions on security measures with serious potential results for the community "require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process". The judicial arm of government must respect the decisions of the executive in those matters.

[113] In these reasons, I have accorded to the appellant a procedural right that the executive arm of government held out to him. That right is a narrow one. It does not entitle him to any particular result either from the Human Rights Committee or the government once it receives the views of the Committee. Moreover, as I have said, it is a right that must be balanced against other interests, including national security. But, the courts in their commendable effort to support the government's defence of this and other countries from terrorism must bear in mind the words of Justice Frankfurter in McNabb v. U.S., 318 U.S. 332 (1942) at p. 347, which were adopted for this country by Lamer J. in Re Section 94(2) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, at p. 513 S.C.R., p. 310 C.C.C.: "the history of liberty has largely been the history of observance of procedural safeguards."

Appeal dismissed.

Notes

[^1]: As I understand it, as an exercise of the Royal Prerogative the treaty-making power is exercised by the Governor General on the advice of the government. The actual signing of a treaty may take different forms. See Peter Hogg, Constitutional Law of Canada, Vol. 1, 4th ed. looseleaf, (Toronto: Carswell, 1997), at para. 11.2. In these reasons, I will use the short form the "federal government" as the entity that entered into the Convenant and the Protocol.

[^2]: Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, arts. 26-27.

[^3]: Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, 90 C.R.R. (2d) 47.

[^4]: See W.A. Schabas, International Human Rights Law and the Canadian Charter, 2nd ed. (Toronto: Carswell, 1996), at pp. 72-75.

[^5]: In R. v. Pan, 2001 SCC 42, 155 C.C.C. (3d) 97, 200 D.L.R. (4th) 577 at p. 120 C.C.C., Arbour J. assumed a constitutional principle that any review provided by statute or common law "must proceed farily".

[^6]: For example, Professor Walter Tarnopolsky was a member of the Committee until his appointment to this court.

[^7]: I suspect that some of the difficulty stems from the terms of the constitutions of the nations involved. Thus, the Constitution of Trinidad and Tobago affirms the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof "except by due process of law" (emphasis added). This led the majority of the Judicial Committee in Thomas v. Baptiste at para. 26 to characterize the applicant's right in these terms:

By ratifying a treaty which provides for individual access to an international body, the Government made the process for the time being part of the domestic criminal justice system and thereby temporarily at least extended the scope of the due process clause in the Constitution.

The dissenting judgment delivered by Lord Goff and Lord Hobhouse relies upon the limitation implied by the use of the term "law" as essentially referring to the "law of the land" or domestic/municipal law. See especially paras. 58 and 61. Section 7 of the Charter is broader and refers to principles of fundamental justice.

[^8]: See also s. 38.1 of the Immigration Act, R.S.C. 1985 c. I-2.

[^9]: Statement by Hon. Allan J. MacEachen (Secretary of State for External Affairs) to the House of Commons on May 18, 1976 after announcing that Canada would ratify the Convenant and the Protocol the following day.

[^10]: Department of Foreign Affairs and International Trade, online: http://www.dfait-maeci.gc.ca/english/foreignp/ cnd-world/chap5.htm

[^11]: Human Rights in Canadian Foreign Policy, online: http://www.dfait-maeci.gc.ca/human-rights/forpol-e.asp