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Federal Court |
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Cour fédérale Date:20060508 Docket: DES-04-01 |
Citation: 2006 FC 1058 Halifax, Nova Scotia, May 8, 2006
PRESENT: The Honourable Mr. Justice W. Andrew Mackay
BETWEEN:
IN THE MATTER OF a certificate
pursuant to Section 40.1
of the Immigration
Act, R. S. C.
1985, c. 1-2, now deemed
to be under s-s 77(1)
of the Immigration and Refugee Protection
Act,
S. C. 2001, c.27;
AND IN THE MATTER OF the referral
of that certificate to the Federal Court of Canada;
AND IN THE MATTER OF Mahmoud JABALLAH,
CERTIFICATE
This certifies that
the attached transcript of Reasons delivered orally in the course of hearings
on May 2, 2006, constitutes the essence of Reasons given for the order issued
orally that day whereby I dismissed the application by Mr. Jaballah to postpone
hearings on the reasonableness of the security certificate issued in August
2001, and I adjourned further hearings for receipt of his evidence to May 15,
2006.
1
1 Toronto, Ontario
2 Decision Rendered on Tuesday, May 2, 2006
3 in Court File DES-4-01
4 Minister of Citizenship and Immigration and
5 Solicitor General v. Mahmoud Jaballah
6
7 THE COURT: Good morning, all.
8 I will give you my decision
9 orally, if I may, and then we will spend a bit of
10 time, not very much, on where we go from here.
11 So far as the Applicant seeks an
12 order postponing the proceedings pending
13 determination by the Supreme Court of Canada of
14 three cases to be argued some six weeks hence, I am
15 not allowing the motion. That said, in the
16 circumstances of this week it seems to me that some
17 arrangements have to be made for further hearings.
18 Let me talk a bit about the major
19 motion.
20 Mr. Jaballah applies for an order
21 to postpone hearings arranged some six weeks ago,
22 with agreement of his counsel, first to meet his
23 request for leave to adduce evidence and then
24 hearings arranged for the week of May 15 for
25 argument addressing the reasonableness of the
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564-2727 (416)
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1 security certificate issued in August 2001. That
2 certificate certified the opinion of the Ministers
3 of the Crown concerned that Mr. Jaballah is
4 inadmissible to Canada on security grounds. The
5 certificate was then referred to this Court for
6 determination of its reasonableness.
7 You may not like it, but I express
8 some disappointment. This is the second or third
9 scheduled hearing date for Mr. Jaballah to respond
10 to concerns underlying the Ministers' certificate.
11 It is at least the second time that his counsel
12 has brought forward on less than appropriate notice
13 motions that compel the Court in its concern for
14 some fairness in the process to postpone hearing
15 dates. It is at least the second occasion since
16 last September, when counsel had in effect said,
17 "Quite frankly, I am simply too busy with this and
18 other responsibilities to properly serve my
19 client's interest.'
20 I am disappointed as well, if I
21 may note, that counsel, who were aware of the
22 circumstances at least a week ago of Mr. jaballah's
23 removal from Toronto to Kingston, did not then, so
24 far as I can judge, seek to discuss the matter with
25 counsel for the Crown. I am not certain that that
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3
1 is right, but that is my impression from the manner
2 in which correspondence was directed to me
3 yesterday.
4 Going back to the motion, counsel
5 are agreed, and I agree as well, that the three‑
6 step test concerning a stay of proceedings is the
7 appropriate test to apply. In my opinion that test
8 is not here met. I acknowledge that there are
9 serious issues concerning the constitutional
10 validity of the process applicable under IRPA. The
11 constitutional validity of that process dealing
12 with certificate cases is raised now in other cases
13 before the Supreme Court of Canada. They may
14 arise, but they have not yet been argued, in this
15 case. I am always surprised at what may be argued
16 in this case, so I am not speculating on what may
17 be raised.
18 In a technical sense, there is not
19 a serious issue yet in this case that is before
20 this Court. Nevertheless, I acknowledge that it is
21 likely that issues relating to this case are before
22 the Supreme Court of Canada and will be discussed
23 in the circumstances of other cases in the middle
24 of next month.
25 The Applicant relies on YRI-York,
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1 a decision of the Federal Court of Appeal in 1988,
2 which concerned a motion to stay investigatory
3 processes leading to possible criminal proceedings
4 under the Competition Act, which proceedings were
5 undertaken pursuant to section 17 of the Combines
6 Act which had not yet previously been dealt with in
7 constitutional terms.
8 Here the Court is concerned with a
9 process already upheld as constitutional and valid
10 by the Federal Court of Appeal. Ahani and
11 Charkaoui both dealt with that. That remains the
12 law that I must apply and follow until the Supreme
13 Court of Canada, or Parliament acting within its
14 powers, determines otherwise.
15 Let me acknowledge that there are
16 serious issues arising in this case, some of which
17 will be dealt with, I assume, in the argument and
18 hopefully addressed by the Supreme Court in other
19 cases. I acknowledge that there are serious
20 issues.
21 I turn to irreparable harm. As I
22 read the decision in YRI-York, the principal
23 concern there underlying the Court's decision to
24 grant a stay of another tribunal's process, not the
25 Court's own as is here sought, was its concern over
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1 the potential misuse of information obtained by
2 investigatory processes that might later be found
3 to be invalid.
4 Here the stay is sought to
5 preclude testimony which Mr. Jaballah sought leave
6 to adduce presumably to respond to the concerns of
7 the Ministers as disclosed by the summaries
8 released to Mr. Jaballah, by numerous public
9 documents on the record, by public testimony cf
10 officers of CSIS, and not about other matters.
11 There is much evidence in the public record of this
12 proceeding to which Mr. Jaballah simply has not yet
13 responded.
14 If he does testify in this
15 proceeding, he will have the benefit of secticn 13
16 of the Charter, and you know that that provides
17 protection for a witness testifying in proceedings.
18 They then have the right not to have any
19 incriminating evidence so given used to incriminate
20 that witness in any other proceeding except in a
21 prosecution for perjury or for the giving of
22 contradictory evidence. Admittedly, that applies
23 in the criminal processes only hut, if necessary,
24 this Court would order that any testimony given in
25 this case by Mr. Jaballah not be used in any other
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1 proceedings, whether criminal, civil or
2 immigration, apart from this case and apart from
3 any prosecution for perjury in relation to the
4 testimony given.
5 In any event, I am not persuaded
6 that in the circumstances of this case there is any
7 irreparable harm if the proceedings to hear Mr.
8 Jaballah are not postponed.
9 In those circumstances and in
10 light of the public interest, the speedy resolution
11 of these proceedings, an interest that has been
12 ignored by me until now, among others, I simply do
13 not see that the balance of convenience favours Mr.
14 Jaballah. Indeed, the balance favours the
15 Ministers' position that the matter not be stayed.
16 That is my decision in relation to
17 the application to postpone the hearing essentially
18 indefinitely.
19 We are already in Tuesday of this
20 week's scheduled hearing, and I have said that Mr.
21 Jaballah would not be ordered to be present in the
22 court except on at least two clear days' notice, so
23 there is cne day left at the end of :his week.
24 am not sure, in light of what I know -- and it is
25 very little -- about the arrangements made for
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1 access by counsel to Mr. Jaballah at the moment,
2 whether that be in Kingston or Toronto. I am not
3 sure what those arrangements are.
4 In the circumstances it seems to
5 me, unless counsel have a better idea, that we
6 ought to ensure that Mr. Jaballah is available for
7 at least the time that he might have been available
8 had he not been removed from Toronto in the five
9 days from April 24 to April 29 before this hearing
10 commenced, so that counsel have an opportunity to
11 finish their preparations. I would like counsel to
12 give me some estimate of how much time they
13 anticipate they would have with Mr. Jaballah in
14 that period of time.
15 In any event, I want to leave it
16 to counsel for both parties, if I may, to work out
17 arrangements for Mr. Jaballah to be able to be
18 present for this testimony to be given to the
19 Court, if he wishes to testify, in the week of May
20 15, a week we have held for further hearings in
21 this matter. We have yet to find a time for
22 hearings in relation to the argument on the
23 reasonableness of the certificate.
24 I would like to complete this
25 matter as quickly as I can. I am prepared to say
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1 that, if that has to be after the Supreme Court and
2 before the end of June, we will do it then.
3 Counsel may want to talk about
4 this. I do think counsel can work out co-operative
5 arrangements for dealing with Mr. Jaballah's
6 circumstances now so that he can testify 10 days from now, or almost two weeks from now,
8 satisfactorily. He has to determine whether he
9 wishes to do that. If he does, I can't believe
10 that counsel can't work it out.
11 MS JACKMAN: Maybe we should have
12 a break to talk about it.
13 THE COURT: I think so. I invite
14 you to canvass when you might hear argument on the
15 matter. I assume that a number of you may be
16 involved before the Supreme Court. I am not
17 asking.
18 MR. NORRIS: On this side, yes.
19 THE COURT: We will break for 15
20 minutes.
21 --- Short Recess at 10:15 a.m.
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