BETWEEN:
MAHMOUD JABALLAH
Appellant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
SOLICITOR GENERAL OF CANADA
MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
Respondents
Heard at Toronto, Ontario, on May 12, 2006.
Order delivered at Toronto, Ontario, on May 12, 2006.
REASONS FOR ORDER BY: LINDEN J.A.
Docket: A-206-06
Citation: 2006 FCA 179
Present: LINDENJ.A.
BETWEEN:
MAHMOUD JABALLAH
Appellant
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
SOLICITOR GENERAL OF CANADA
MINISTER OF PUBLIC SAFETY & EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER
[1] This is an application for a stay in relation to two appeals before this Court - one covering a decision denying protection from torture and the second denying a stay to prevent a reasonableness hearing scheduled for Wednesday, May 17, 2006 from proceeding.
[2] It is agreed that the three pronged test of RJR-MacDonald is the governing principle, requiring a serious issue to be tried, irreparable harm to the applicant and the balance of convenience to be in favour of the applicant.
[3] Counsel both agree that the first prong of the test is easily met in that the legislative scheme under which these decisions have been made are to be challenged in three different cases to be heard by the Supreme Court in mid-June. Hence, the understandable desire of the applicant's counsel to postpone the reasonableness hearing until after the Supreme Court decides whether the scheme is constitutional.
[4] In order to succeed, this Court must also be persuaded that both of the other two prongs of the test are met. First, irreparable harm cannot be speculative. It must be harm that would be suffered by an applicant which cannot be compensated with damages or in other ways. It must be established on a balance of probabilities.
[5] One concern expressed is that the appeal from the refusal to stay the hearing would be rendered nugatory if this stay is denied. Usually, in these cases, the rendering nugatory of an appeal has serious consequences such as an immediate deportation or the serious damage to a business. That is not the case here. The only harm caused by the dismissal of the application is not significant. The other appeal on the merits is not rendered nugatory and the reasonableness hearing would go on, but it may turn out to be a wasted effort.
[6] The other argument on irreparable harm is that evidence might be given by the applicant during the hearing that might later turn out to be harmful to him. In my view, this is speculative in that, if he testifies, he likely will offer evidence helpful to himself, not harmful. In any event, there are protections that witnesses may obtain based on legislation and jurisprudence that can minimize or avoid any potential harm to the applicant. The judge who is to hear the case has also indicated in his reasons in this matter that he would be mindful of protecting the applicant's rights under the Charter and the jurisprudence concerning his testimony. Hence I am not persuaded that irreparable harm has been demonstrated on the balance of probabilities.
[7] As for balance of convenience, the public interest is a significant factor here. Counsel for the Crown contends that expedition is necessary in these alleged terrorist cases to remove the applicant as soon as possible, consistent, of course, with due process and fairness. The legislation is meant to foster that goal and has so far been held constitutional by this court. I cannot ignore the presumption of validity.
[8] Another matter is the costs that might be thrown away by proceeding with the hearing in the event that the Supreme Court decides that the legislation is unconstitutional. All of the costs in question are public costs, not private expenses. I am not persuaded that the potential waste of these public costs outweigh the need to move expeditiously in the event that the Supreme Court upholds the constitutionality of the legislation.
[9] It is true that the applicant in this case would remain in custody pending the hearing and likely pending the Supreme Court decision, so that there would be no imminent danger to the people.
[10] On the balance of convenience, taking all of these factors into account, I am not persuaded on the balance of probabilities that the balance of convenience favours the applicant.
[11] Counsel for the Crown indicated that, in the event of a Supreme Court decision of constitutionality, the Crown would not seek to remove the applicant the same day or immediately thereafter but would allow a reasonable time for counsel to make any further challenge they might think advisable.
[12] The application will be dismissed.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: MAHMOUD JABALLAH v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, SOLICITOR GENERAL OF CANADA,
MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 12, 2006
DATED: MAY 12, 2006
APPEARANCES:
Ms. Barbara Jackman FOR THE APPELLANT
Mr. Donald A. MacIntosh
Mr. David Tyndale
Ms. Mielka Visnic FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Jackman & Associates
Toronto, Ontario FOR THE APPELLANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENTS