Date: 19990217
Docket: T-1767-98
BETWEEN:
MANSOUR AHANI
Plaintiff
- and -
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Defendants
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario on
Thursday, February 11, 1999, as edited]
ROTHSTEIN J.
[1] The defendants move to strike portions of the plaintiff's statement of claim in which he seeks a declaration that certain provisions of the Immigration Act, R.S.C. 1985, c. I-2, are of no force and effect under subsection 52(1) of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. The defendants first move to strike paragraph 2 of the statement of claim which claims that the anti-terrorism provisions of the Immigration Act, paragraphs 19(1)(e)(iii), 19(1)(e)(iv)(C), 19(1)(f)(ii), 19(1)(f)(iii)(B) and 19(1)(g) are of no force and effect.
FACTS
[2] The plaintiff entered Canada on October 14, 1991 and claimed Convention refugee status. On December 31, 1991 he was found to have a credible basis for his claim. On April 1, 1992 the Immigration and Refugee Board determined that he was a Convention refugee. On June 9 and June 15, 1993 the Solicitor General of Canada and the Minister of Employment and Immigration, respectively, certified under subsection 40.1(1) of the Immigration Act, that they were of the opinion, based on a security intelligence report received and considered by them, that the plaintiff was inadmissible to Canada as being a person described in the anti-terrorism provisions of the Immigration Act, namely paragraphs 19(1)(e)(iii), 19(1)(e)(iv)(C), 19(1)(f)(ii), 19(1)(f)(iii)(B) and 19(1)(g). On June 17 and 18, 1993 the certificate was filed with an immigration officer and with this Court. The plaintiff was served with a copy of the certificate and taken into custody and has remained in custody since that date.
[3] As a result of the section 40.1 proceedings brought against him, the plaintiff, on December 24, 1993, commenced an action in this Court challenging the constitutional validity of section 40.1 based on section 7 of the Charter. That Charter challenge was decided by McGillis J. in Ahani v. Canada, [1995] 3 F.C. 669. McGillis J. found the procedures under section 40.1 to be constitutionally valid. Her decision was upheld by the Federal Court of Appeal (1996), 201 N.R. 233. Leave to appeal to the Supreme Court of Canada was dismissed, [1997] 2 S.C.R. v.
[4] Subsequently, the proceedings under section 40.1 concluded on April 17, 1998 with Denault J., the designated judge, finding that the Minister's certificate was reasonable. The Minister then proceeded under paragraph 53(1)(b) of the Immigration Act as the next step in the process of deporting the applicant.
[5] Paragraph 53(1)(b) provides:
| 53. (1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person's life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless |
| . . . |
| (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; |
[6] The Minister issued her opinion that the plaintiff constituted a danger to the security of Canada on August 12, 1998.
[7] This action was commenced on September 9, 1998 challenging the constitutional validity of the anti-terrorism provisions of subsection 19(1) and paragraph 53(1)(d) of the Immigration Act.
ANALYSIS
[8] The defendants concede that the plaintiff may bring the present action to challenge the constitutional validity of paragraph 53(1)(d). However, they say, amongst other reasons, that the plaintiff elected to challenge the validity of section 40.1 in his 1993 action, that section 40.1 incorporates by reference the anti-terrorism provisions of subsection 19(1) of the Immigration Act and the plaintiff is now estopped from commencing a new action challenging the anti-terrorism provisions. The defendants rely on Singh (Ahmar) v. Canada (Minister of Citizenship and Immigration), [1996] 123 F.T.R. 241. Singh is a decision of Muldoon J. of this Court who found that it is an abuse of the process to "litigate by instalments". At paragraph 9 of Singh, Muldoon J. cites Maynard v. Maynard, [1951] S.C.R. 346 in which the Supreme Court of Canada adopted a passage from Green v. Weatherill, [1929] 2 Ch. 213 at pp. 221-222:
| ... the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. |
[9] Muldoon J. then refers to a passage in the Maynard case in which the Supreme Court adopted the following passage from Hoystead v. Taxation Commissioner, [1926] A.C. 155 at p. 170:
| Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. |
| If this were permitted litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted, and there is abundant authority reiterating that principle. |
[10] I think the dicta cited is applicable to the case at bar. The plaintiff, in 1993, brought a Charter challenge against section 40.1. Section 40.1 incorporates by reference the anti-terrorism provisions of subsection 19(1) which the plaintiff in this action now seeks to challenge. As such, the anti-terrorism provisions of subsection 19(1) are integral and form part of the statutory scheme in section 40.1. There is no reason the plaintiff could not have included the challenge to the subsection 19(1) provisions when he commenced his 1993 action. In fact, in the Notice of Constitutional Question pertaining to the 1993 action, the plaintiff describes his challenge as "a plenary constitutional question directed at section 40.1". The authorities cited with approval in Singh by Muldoon J. are dispositive on this issue. The plaintiff could have brought the same issues before the Court in his 1993 action that he seeks to advance in this action. His is estopped from doing so. The matter is res judicata.
[11] For the Court to acquiesce in the challenge to the anti-terrorism provisions of subsection 19(1) in this action would be to permit an abuse of the process. Indeed, in Ahani, McGillis J. makes reference to evidence that was tendered by the Crown and cross-examined by the plaintiff relative to terrorism, the very subject matter of the provisions the plaintiff seeks to challenge in this action. The plaintiff, as the cases cited clearly indicate, cannot litigate by instalments.
[12] Plaintiff's counsel says the plaintiff was entitled to await the decision of the designated judge under section 40.1 before bringing his Charter challenge to the anti-terrorism provisions of subsection 19(1). In doing so, the plaintiff is treating the challenge to the anti-terrorism provisions as an appeal of the section 40.1 decision of the designated judge. However, the Immigration Act is clear that no appeal lies from a decision of a designated judge under section 40.1. Subsection 40.1(6) provides:
| 40.1 (6) A determination under paragraph (4)(d) is not subject to appeal or review by any court. |
[13] That is not to say that in appropriate circumstances, an action for a declaration of constitutional invalidity of provisions of the Immigration Act is precluded. It is only to say that in this case, when the plaintiff elected to bring an action for a declaration of constitutional invalidity in 1993, he could not hold back some of his arguments on the grounds he was awaiting a decision under section 40.1. Once he elected to challenge section 40.1, which incorporates the anti-terrorism provisions of subsection 19(1), he was obliged to bring forward all relevant arguments. He failed to do so at his own peril.
[14] The plaintiff says there is a difference between procedural and substantive Charter challenges. Again, the plaintiff appears to treat the present action as an appeal of the decision of the designated judge under section 40.1. Once the plaintiff commenced his Charter challenge to section 40.1, he was required to raise all arguments, whether as to procedure or as to substance, and whether to an express provision in section 40.1 or to provisions of subsection 19(1) incorporated by reference therein.
[15] The plaintiff says that because the Immigration Act consists of a number of procedural steps in the process to deport a Convention refugee, that the plaintiff is justified in proceeding by instalments as well. However, the succession of procedural steps provided in the Immigration Act are for the benefit of those, like the plaintiff, who the government wishes to deport. It is quite appropriate for an affected person to await the government invoking a particular step in the process before challenging that legislative provision. However, it is not appropriate to attempt to revive old issues pertaining to a previous step by attempting to incorporate them in a challenge of subsequent proceedings. If that were permitted there would be no end to litigation. An affected person could select one provision for challenge and then if unsuccessful, proceed to challenge another in succession. That is clearly an abuse of the process and, if permitted, would bring the administration of justice into disrepute.
[16] The defendants' motion to strike paragraph 2 of the plaintiff's statement of claim challenging paragraphs 19(1)(e)(iii), 19(1)(e)(iv)(C), 19(1)(f)(ii), 19(1)(f)(iii)(B) and 19(1)(g) of the Immigration Act is granted, and that portion of the statement of claim is struck out.
[17] The defendants then move to strike the last sentence of paragraph 9 of the statement of claim. Plaintiff's counsel says the reason for including it goes to whether the Minister exercised her discretion under paragraph 53(1)(b) within constitutional bounds. That is not a subject matter of this action but rather, is to be dealt with in a judicial review which the applicant has brought in respect of the Minister's order under paragraph 53(1)(b) of the Immigration Act. Because it is irrelevant to these proceedings, the motion is granted with respect to the last sentence of paragraph 9 and it is struck out.
[18] With the consent of the plaintiff, the defendants' motion with respect to paragraph 13(iv) is granted and the words "unduly broad" are struck out.
[19] The defendants' motion with respect to the plaintiff's claim for general and particular damages is adjourned to permit the plaintiff to submit to the Court a proposed amended statement of claim with allegations supporting the claim for damages, having regard to Guimond v. Québec, [1996] 3 S.C.R. 347. The proposed amended statement of claim shall be submitted to the Court and served on the defendant on or before Monday, February 15, 1999 and the argument shall take place by way of conference call at a time to be fixed by the Court.
Marshall Rothstein
Judge
Ottawa, Ontario
February 17, 1999