Date: 19980522
Docket: A-265-98
CORAM: STRAYER, J.A.
BETWEEN:
MANICKAVASAGAM SURESH
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER
STRAYER, J.:
[1] The appellant was released by order of a Judge of the Trial Division dated March 23, 1998, such order having been made under subsection 40.1(8) of the Immigration Act. He appeals from that order with respect to some of the conditions imposed on him by that order. I gather from the material filed to date that the appeal will raise issues as to the constitutionality of certain of these conditions.
In the meantime, the appellant filed on May 7, 1998 a notice of motion, to be disposed of under Rule 369, for an order to vary the record on appeal. The supporting submissions state in a general way that there are two kinds of materials to be added. Firstly, there is evidence (not particularized) which was before the motions judge when he made a determination under paragraph 40.1(4)(d) that the Ministers' certificate in respect of the appellant was reasonable. This evidence is not in the appeal record as prepared which contains essentially the material before the judge, and the proceedings therein, on the occasion of the making of the conditional order for release. Counsel for the respondent objects to the selective addition of material from the "reasonableness" hearing as proposed, suggesting that if it is admitted then fairness would require the admission of other evidence including evidence from in camera hearings.
[2] Secondly, the appellant proposes to introduce new evidence on the impact of this order which is said to have become apparent since its making.
[3] In disposing of this motion, I should first emphasize the limited nature of the appeal here. It is very important to note that by subsection 40.1(6) there can be no appeal from the determination by the judge that the Ministers' certificate was reasonable. Moreover, certain of the evidence before the motions judge in that proceeding was taken in camera and in the absence of the appellant and could not be made the subject of debate before this Court. The appeal relates only to the release order and then only in respect to the conditions for release fixed by the order. It appears from the record that in fact the appellant agreed to the substance of the terms, reserving only the constitutional issues possibly to be raised in further litigation. As to the merits of any particular terms in the release order, those were within the discretionary power of the motions judge and reviewable by this Court only in respect of a serious error of principle or complete misapprehension of the facts.
[4] I have concluded that this motion should be dismissed.
[5] With respect to the first category of evidence, that which was before the judge in the "reasonableness" hearing but not specifically before him in granting the conditional release, the appellant has failed to specify the relevance of any particular item of evidence to any particular issue this Court would have to determine concerning the terms of the release order. I would also exercise my discretion against the addition of such evidence at this stage. The appellant filed his notice of appeal on April 1, 1998. On April 14 the Chief Justice fixed an early date for the hearing of the appeal, namely some time in the week of June 15. The Court then received a letter dated April 22 from counsel for the appellant confirming what the record should contain. The only matter she left for further consideration with counsel for the respondent was the addition of certain ex parte evidence heard in camera. On April 29, 1998 counsel for respondent agreed to this list and suggested certain additions. It appears to me that the record has now been prepared on this basis. But on May 7, 1998 the appellant brought this motion to enlarge the record. If counsel for the appellant thought other public evidence or new evidence was needed this should have been specified in her letter of April 22 "confirming" the contents of the record. I am also mindful that, given the apparently narrow scope of the appeal, the non-appealability of the "reasonableness" issue, and the confidentiality of some of the evidence before the motions judge, the circumstances militate against an extensive foray into the fifty days of evidence before him on the "reasonableness" issue.
[6] With respect to the second category of evidence, this is new evidence and counsel has done nothing to demonstrate that it comes within the criteria for the admission of new evidence on appeal. Further, it appears in fact to involve events since the issue of the release order. But the issue before this Court on appeal from the order of March 23, 1998 will be as to whether, on the basis of the relevant material before the motions judge at the time it was made, he made any reviewable error.
[7] The motion of May 7, 1998 will therefore be dismissed.
"B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-265-98
STYLE OF CAUSE: MANICKAVASAGAM SURESH
- and -
THE MINISTER OF CITIZENSHIP
| AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA |
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 369.
REASONS FOR ORDER BY: STRAYER, J.A.
DATED: MAY 22, 1998
SOLICITORS OF RECORD:
Ms. Barbara Jackman
JACKMAN, WALDMAN AND ASSOCIATES
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Appellant
Mr. Jim Leising
Department of Justice
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondents
FEDERAL COURT OF CANADA
Date: 19980522
Docket: A-265-98
Between:
MANICKAVASAGAM SURESH
Appellant
- and -
THE MINISTER OF CITIZENSHIP
| AND IMMIGRATION |
| and THE SOLICITOR GENERAL OF CANADA |
Respondents
REASONS FOR ORDER