Canada v. Jaballah, 2006 FC 1010

Date: 20060818

Docket: DES-04-01

Citation: 2006 FC 1010

BETWEEN:

IN THE MATTER OF a certificate pursuant to

Section 40.1 of the Immigration Act, R. S. C. 1985,

c.I-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,

REASONS FOR ORDER

MACKAY D.J.

[1]   These are Reasons for an Order issued on June 30, 2006, by which the Court dismissed a motion on behalf of the Respondent, Mr. Jaballah, requesting the Court to reconsider an earlier decision, made by Order dated May 2, 2006, to postpone the hearing of evidence and argument concerning the reasonableness of the security certificate issued in August 2001 by the applicant Ministers of Citizenship and Immigration and the then Solicitor General, the latter since succeeded by The Minister of Public Safety and Emergency Preparedness. In the alternative an order was requested to appoint a “special counsel” to appear before the Court on behalf of Mr. Jaballah in an in camera hearing to contest the non-disclosure of information, earlier ordered by the Court and not disclosed to Mr. Jaballah or his counsel pursuant to s. 78 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 as amended (IRPA).

[2]   The motion also requested other relief, concerning conditions of detention at the Kingston Immigration Holding Centre, to which Mr. Jaballah and others were moved in late April 2006, and also a request that this Court set a date for a hearing, in light of the decision in Harkat v. The Minister of Public Safety and Emergency Preparedness et al., [2006] F.C.J. No. 770, 2006 FC 628, appeal dismissed (2006 FCA 259, July 13, 2006), to reconsider its decision made in February 2006 not to release Mr. Jaballah from detention.

[3]   The Court declined on June 30 to deal with the matter of detention conditions pending opportunity for counsel for the parties to consult on process to resolve those concerns. At hearings on July 11, the Court was informed of changes in conditions and progress in resolving continuing differences. Unless there be further representations, no further consideration of the concerns expressed by Mr. Jaballah about those conditions is now contemplated.

[4]   The Court also declined by its Order of June 30 to then set a date for a hearing to reconsider the refusal to release Mr. Jaballah from detention pending conclusion of the hearings on the reasonableness of the Ministers’ certificate, a stage postponed already on a number of occasions to deal with interlocutory motions on behalf of Mr. Jaballah. If the certificate is not found to be reasonable, it will be quashed and Mr. Jaballah will then be released from detention.

[5]   Early in July new counsel for Mr. Jaballah wrote to the Chief Justice to request a hearing of a motion for release of Mr. Jaballah. Unless I am designated by the Chief Justice to hear the application for release, it is assumed that step by counsel has overtaken any need for this judge to give consideration to a date to hear an application to reconsider its earlier decision, or as it was expressed orally on June 28, to vary his detention so that it might be served under house arrest with conditions, in light of the decision of Justice Dawson in Re Harkat, supra.

[6]   Before dealing with the other two requests for relief, to reconsider the refusal to postpone these proceedings, or to reconsider an earlier refusal to appoint a special counsel, I briefly describe the general context in which the motion before the Court arises.

The general context

[7]   These proceedings, concerning the reasonableness of the Ministers’ security certificate, have been protracted. They were most recently summarized in an appendix to a decision dated March 16, 2006, (see Re Jaballah, 2006 FC 346), which found lawful a September 2005 decision on behalf of the Minister of Citizenship and Immigration that refused Mr. Jaballah’s application for protection. In the course of the review proceedings concerning the Minister’s decision, Mr. Jaballah requested leave to testify in relation to the reasonableness of the certificate, an opportunity he had earlier declined. Leave to testify or to present evidence otherwise, was granted in November 2005.

[8]   With agreement of counsel hearing dates were scheduled on a number of occasions, in two separate weeks, first for evidence on behalf of Mr. Jaballah, and second for argument:

i.   in February 2006, and those hearings were adjourned to hear a motion brought on short notice by counsel for Mr. Jaballah that this judge recuse himself from this case, a motion which was denied;

ii. on May 1 and 2, 2006, when scheduled hearing dates were adjourned to hear a motion on behalf of Mr. Jaballah that further proceedings be stayed or postponed pending determination by the Supreme court of Canada of three other cases then set down to be heard in mid- June, a motion denied. That decision was appealed and a stay of these proceedings pending hearing of the appeal was refused by Linden J.A. for the Court of Appeal (See Jaballah v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 747, 2006 FCA 179);

iii.                        In mid-May 2006, when Mr. Jaballah was about to testify, his counsel, emphasizing the importance of assuring Mr. Jaballah’s right to know the case he has to meet, orally requested further disclosure, and the appointment of a special counsel, if his own counsel were not allowed to represent his interests in confidential hearings, to challenge the information not provided to Mr. Jaballah. The Court did then undertake to, and did later again examine, in the presence of counsel for the Ministers, the information before it that had not been disclosed to him or his counsel, with a view to ensuring that with the passage of time all of the Ministers’ information before the Court had been disclosed to him except that which in my opinion, in accord with s. 78(b) and (e), would, if released, be injurious to national security, or the safety of any person. At the same time the Court declined, by oral ruling, the request to appoint a special counsel, or amicus curiae. In so doing, the Court followed generally the decision of Justice Dawson in Re Harkat, [2004] F.C.J. No. 2101, 2004 FC 1717. In light of the lateness of the request and the inevitable lengthy delay which would result from such an appointment, the lack of any shared understanding on responsibilities of a special counsel, in particular such counsel’s relationship to Mr. Jaballah or to his counsel, in my opinion the proposed appointment would not facilitate hearing of this matter. Moreover, the Court was not persuaded a designated judge, acting pursuant to s. 78 of IRPA, would not ensure protection of any Charter rights of Mr. Jaballah, particularly since any decision concerning the application of the Charter would be subject to appeal.

iv.                       On June 28 when this motion for reconsideration and other relief was heard five days that had been scheduled for hearing testimony were again adjourned. When the motion for reconsideration was dismissed, new dates were scheduled for hearing testimony of and on behalf of Mr. Jaballah, and that testimony was heard July 11 to 13, 2006. Submissions on the reasonableness of the Ministers’ security certificate are now scheduled for the week of September 11, 2006, the first dates when counsel for the parties, in particular counsel for Mr. Jaballah, are available.

[9]   So much for the context in which the motion arises. I turn next to the principal objects of the motion for reconsideration of previous decisions.

Motion to reconsider refusal to postpone these proceedings

[10]                       On May 2, 2006 I dismissed, and on May 8 certified a transcript of reasons rendered orally for a motion on behalf of Mr. Jaballah to postpone further proceedings pending determination by the Supreme Court of Canada of three other cases (here referred to as Almrei, Charkaoui, and Harkat) scheduled to be and since heard in mid- June 2006, in which underlying constitutional questions were raised in regard to security certificate proceedings. The expected decision, it was argued, might well affect the outcome of these proceedings concerning Mr. Jaballah.

[11]                       That motion, heard on May 1, 2006, was argued by counsel for Mr. Jaballah as a motion to stay proceedings relying upon the standard test, adopted from that for an interlocutory injunction as enunciated by the Supreme Court of Canada in Metropolitan Stores [1987] 1 S.C.R. 110 and RJR Macdonald  Inc. v. Canada (A. G.), [1994] 1 S.C.R. 311, and adopted generally in immigration cases following Toth v. Canada (Minister of Employment and Immigration), (1988) 86 N.R. 302, 6 Imm. L.R. (2d) 123 (F.C.A.). I was not satisfied that Mr. Jaballah had met the three part test, in particular the need to establish he would suffer irreparable harm if the stay were not granted, and the need to establish that the balance of convenience favoured the grant of a stay. I note that counsel for Mr. Jaballah acknowledged that the process provided by IRPA, which this Court has followed, has been held to be constitutionally valid (see Re Charkaoui, 2004 FCA 241, 247 D.L.R. (4^th) 405, 328 N.R. 201, [2004] F.C.J. No. 2060 (F.C.A.)). That determination, I considered to be binding on this Court until otherwise determined by the Supreme Court of Canada, or until varied by Parliament acting within its legislative authority. The Order of May 2 dismissing the application to postpone proceedings was appealed, but as noted above (para. 8 (ii)) a motion that the Court of Appeal stay these proceedings, pending hearing of the appeal, was dismissed.

[12]                       In support of Mr. Jaballah’s claim the likely irreparable harm was said to be the potential for use of any testimony of Mr. Jaballah in a self-incriminatory manner in future proceedings, particularly any reconsideration of the reasonableness of the Ministers’ security certificate that might result from the determination of the Supreme Court in the cases before it in mid- June. That possible harm, it seemed to me, could be avoided by an order of the Court limiting use of Mr. Jaballah’s testimony appropriately in future proceedings. Pending consideration of further submissions of counsel, an order was then made limiting use of any testimony of Mr. Jaballah in any future proceeding, and that Order has since been modified and issued on August 18, 2006 after considering submissions of the parties.

[13]                       The motion heard on June 28, 2006 sought reconsideration of the decision of May 2 not to postpone the hearing of evidence and argument in regard to the Ministers’ security certificate, urging the exercise of discretion but not on the usual bases for a stay. This time postponement was said to be warranted on the ground that the tone of questions and discussions in hearings of the Supreme Court in the appeals heard in mid-June, in the Almrei, Charkaoui and Harkat cases, indicated reasonable likelihood of decisions that would support conclusions that the process followed in considering security certificates in those cases, and implicitly in this one, is unconstitutional. At this stage that assessment of the general tone of discussions before the Supreme Court was based, not on a transcript of the proceedings, but on the observations of news reporters and others, and written submissions of the Federation of Law Societies and the Criminal Lawyers’ Association to that Court. The outcome predicted was speculative.

[14]                       As was the case in May, I was not persuaded on June 28 that comments of third party observers on proceedings before the Supreme Court can be a basis for forecasting that Court’s decisions. Nor was I persuaded that the circumstances in this case are comparable to those suggested by counsel for Mr. Jaballah where Courts have granted a stay pending decisions in other judicial proceedings. Finally, I was not persuaded that this argument was new in the sense that it was beyond the scope of argument advanced on May 1, 2006, when the first motion to postpone these proceedings was heard. The only change in circumstances since then was the fact that the hearing before the Supreme Court of Canada had taken place, but the outcome of that hearing then anticipated by counsel for Mr. Jaballah remained the same. A second motion based on the same essential facts does not provide new authority for the Court to vary a decision rendered on a prior motion which sought similar relief.

[15]                       In the result there was no basis on which the Court would reconsider its decision of May 2, 2006. Thus I dismissed the motion heard on June 28 insofar as it sought an Order to stay or postpone proceedings in relation to the security certificate.

Appointment of a “special counsel”

[16]                       As earlier noted (para. 8 (iii) supra) in the course of hearings on May 18, 2006, counsel for Mr. Jaballah, without formal motion, requested the Court that his counsel or a special counsel named by the Court, consider the confidential evidence and test its reliability and credibility, in in camera hearings if necessary. The Court ruled that it would not then name a special counsel or amicus curiae to review that information either on behalf of Mr. Jaballah or to advise the Court. At the time, the Court  ruled (see transcript May 18, 2006 at p. 483 line 20 to p. 484 line 21)

It would not be appropriate for me in any way, it seems to me, to now direct the appointment of counsel to advise the Court.  The Court has relied on its own resources to try to assert what is to be released and what is not to be released.  That is a process which has been approved as consistent with constitutional norms in Canada, in Charkaoui, earlier in Ahani in the ¼process under section 40.1 of the Immigration Act under which, I remind you, this case began.

In any event, in light of that process, the validity of which has been upheld, although I recognize that it is subject to question in the Supreme Court next month, I am not prepared to order that there be a special counsel involved or an amicus involved.  We would have to go back and start all over again with this case.

In the matter of ruling for counsel for Mr. Jaballah to consider any evidence that is heard in confidence – and I suppose the same would apply to an amicus – the Court has an obligation under the statute, a specific duty, not to release to anybody information or evidence which, in the view of the Court by section 78 (b), if it were disclosed would be injurious to national security or to the safety of any person.

[17]                       The motion heard June 28, 2006, requested “an order appointing a special counsel to appear before the Court on behalf of the Applicant in an in camera hearing to contest the non-disclosure by the Respondents of information relevant to the hearing into the reasonableness of the Applicant’s security certificate and to challenge the reliability and credibility of such evidence which is not disclosed to the Applicant, prior to the Applicant being required to complete his answer to the case against him”.

[18]                       For Mr. Jaballah it was urged that the tenor of questions and discussions in the hearings of the Supreme Court in mid-June (i.e. in the Almrei, Charkaoui and Harkat cases) was indicative of likely support for the principle of a special counsel or amicus curiae to challenge the confidential information in proceedings like this one. That opinion, again supported by the observations of reporters, observers, and by intervenors, is, nonetheless, speculation at this time. While counsel for Mr. Jaballah expressed a preference for such a special counsel based on the model perceived as that adopted some years ago by the Security Intelligence Review Committee (“S.I.R.C.”) acting under the CSIS ACT, the responsibilities of the named counsel, in relation to the Court, and to the person concerned (Mr. Jaballah) or his counsel, were not specified in argument before me. I note that in Re Harkat, 2004 FC 1717, [2004] F.C.J. No. 2101 (QL), at para. 11, Justice Dawson set out the duties of an independent counsel in S.I.R.C. proceedings, as recalled by one counsel who had served in that capacity and who gave evidence in that case.

[19]                       At this stage the appointment of a special counsel in these proceedings would inevitably further delay the process, underway now for nearly five years. It would be an arrangement that might not meet any or all the criteria the Supreme Court might propose even if that Court should favour such an appointment, or that parliament might hereafter provide.

[20]                       In my view the circumstances of this case, both on May 18 and on June 28, are similar to those applicable in Harkat v. M.C.I., (2004 FC 1717 supra), where Justice Dawson, implicitly acknowledging the discretion of the Court to designate a special counsel, found that when acting in accord with the provisions of IRPA, which have been upheld as constitutional by the Court of Appeal, the Court’s discretion to appoint such a counsel would not be exercised where there was no basis to suggest the designated judge’s role would not protect the rights of the person concerned. That role is to assess the information and evidence before the Ministers, a typical judicial role even if some of the information is not disclosed. There is not a question of law on which independent legal advice, other than that provided by counsel for the parties, could assist the Court.

[21]                       The Court, acting without special counsel or an amicus curiae, in my opinion, is consistent with the intent of Parliament as expressed in s. 78 of IRPA and is not inconsistent with constitutional requirements as determined by the Court of Appeal.

[22]                       As I read s. 78, the responsibility of a designated judge does not permit the Court to authorize counsel for Mr. Jaballah to examine the evidence that is not disclosed to him. Moreover, the Court was not persuaded that in the circumstances of this case it should now appoint special counsel and outline responsibilities of such an officer to deal with information that is not disclosed.

Conclusion

[23]                       For the reasons set out, the Order of June 30, 2006 dismissed the application to reconsider the Court’s earlier refusals, to postpone the hearing of evidence and argument about the reasonableness of the security certificate of August 2001, or to appoint a special counsel or amicus curiae to examine and contest information not disclosed to Mr. Jaballah, disclosure of which this Court has previously determined would be injurious to national security or to the safety of any person.

"W. Andrew MacKay"