Zündel, Re, 2004 FC 198

Date: 20040206

Docket: DES-2-03

Citation: 2004 FC 198

Ottawa, Ontario, February 6, 2004

Present:    The Honourable Mr. Justice Blais           

IN THE MATTER OF a certificate signed pursuant to subsection

77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27

(the "Act");

AND IN THE MATTER OF the Referral of that certificate of the

Federal Court of Canada pursuant to subsection 77(1),

sections 78 and 80 of the Act;

AND IN THE MATTER OF ERNST ZÜNDEL

                         REASONS FOR ORDER AND ORDER

[1]                 In the context of the certificate review pursuant to subsection 77(1) of the Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, Mr. Zündel has moved for an adjournment of the proceedings pending a decision on his appeal to the Federal Court of Appeal of this Court's decision on a motion for disclosure.

[2]                 The argument underlying the motion is that the disclosure is essential for Mr. Zündel to be able to dispute the security certificate, and that this Court has erred in not providing sufficient reasons for denying the disclosure.

[3]                 In the course of his oral arguments, Mr. Peter Lindsay, Mr. Zündel's counsel, also cited as a reason for the adjournment the fact that there was also an appeal before the Ontario Court of Appeal of a decision by Justice Benotto of the Ontario Superior Court of Justice staying an application for a writ of habeas corpus and for a constitutional challenge of the IRPA as violating sections 7, 9, 10 and 11 of the Canadian Charter of Rights and Freedoms (Charter). Justice Benotto ruled that she had no jurisdiction in the matter, since the case was already before the Federal Court, as provided in sections 77 to 80 of the IRPA.

[4]                 Mr. Zündel's argument is that since the security certificate, once it is held to be reasonable by this Court, becomes an order for removal with no possibility of appeal or judicial review, a ruling on the certificate before either Court of Appeal renders a decision effectively deprives Mr. Zündel of his constitutional rights.

[5]                 According to Mr. Lindsay, the dictates of fairness and natural justice should compel the Court to wait until Mr. Zündel's rights have been decided in another forum. Mr. Lindsay stated eight reasons why the hearing should be adjourned:

1)         If no adjournment is granted, this will cause harm to Mr. Zündel, in fact, irreparable harm. The nature of the evidence used against Mr. Zündel is an issue that is part of the Charter challenge before the Ontario Court of Appeal. The secrecy of the information is denying Mr. Zündel his right to a full defence. If the hearing continues, Mr. Zündel will not be able to take his Charter challenge all the way up to the Supreme Court of Canada, as he should have the right to do.

2)         The decision on the certificate could be made before Mr. Zündel even has time to pursue the statutory rights of interlocutory appeal against the Court's decision on the disclosure motion. Moreover, there is a motion for a stay before the Federal Court of Appeal.

3)         There is no prejudice to the Crown from the adjournment. Mr. Zündel will remain in custody.

4)         Mr. Zündel is willing to remain in custody to have his Charter challenge determined and his appeal rights to the Federal Court determined.

5)         According to subsection 78c) of the IRPA, expeditiousness must be subordinate to fairness and natural justice. Yet the Crown is not cooperating in ensuring fairness and natural justice, because it will not consent to an expedited appeal before the Ontario Court of Appeal.

6)         The decision on the detention, handed down just the day before the motion was heard, is another factor which must be considered. Mr Zündel and his lawyer need time to carefully review the reasons of the decision, given the interrelatedness of the decision on the detention and the future decision on the certificate.

7)         The suggestion is made to adjourn the hearing for one month or two, to allow the parties to resolve outstanding issues. It will be easier to proceed after that time, since there will be a better sense of where the appeals stand, and, hopefully, a better cooperation between the parties.

8)         This time I quote the transcript directly, because I am not certain I would know how to state this last argument otherwise:

MR. LINDSAY: The last of the eight points would be that the length of delay of one or two months be spoken to to try to see where we are at. (transcript, at 2204)

[6]                 A little further on (at 2213), Mr. Lindsay clarifies that what is requested is not an adjournment that would last for years, rather, a few months, given that the delay at the Court of Appeal with an expedited appeal should be approximately three months.

[7]                 The Ministers argued first that regard must be had to the wording of subsection 78c):

[8]                 Fairness and natural justice do not mean, according to the Ministers that the judge should ignore his statutory duty to proceed expeditiously and wait until any and all evidentiary ruling is decided by the Supreme Court of Canada. This would be completely contrary to the spirit of the IRPA.

[9]                 The Ministers further submit that whatever the Ontario Court of Appeal's decision, it has no binding effect on this Court; therefore, there is no reason to wait on a decision of the Court of Appeal before continuing the review. Moreover, the constitutional appeal is not properly before the Ontario Court of Appeal since Justice Benotto did not rule on it at trial. So far, the only issue that the Court of Appeal has recognized, according to the order of Justice Moldaver, is whether Justice Benotto erred in declining jurisdiction.

[10]            In addition, the Ministers contend that no appeal lies to the Federal Court of Appeal from this Court's decision on the motion for disclosure. They base their argument on two factors: First, although subsection 27(1) of the Federal Court Act allows for the appeal of an interlocutory decision, paragraph 72(2)(e) of the IRPA specifically disallows it. Secondly, subsection 80(3) states that the determination of the judge on the certificate is final, and cannot be appealed or judicially reviewed.

[11]            In answer to those arguments, Mr, Lindsay replies that paragraph 72(2)(e) appears in the part of the Act dealing with judicial reviews, which this certificate review is not. As to subsection 80(3), Mr. Lindsay argues that it applies to the determination of the reasonableness of the certificate, not to decisions made in the course of the review.

[12]            In the course of oral argument, it gradually appeared that Mr. Lindsay was not asking for the proceedings to be suspended until a decision was rendered by the Federal Court of Appeal or the Ontario Court of Appeal, but rather two months or so to help the parties establish a more collaborative relationship and to see how the appeal situation in both courts would develop.

ISSUE

[13]            The sole issue to be decided is whether an adjournment should be granted in the circumstances.

ANALYSIS

[14]            I have identified a single issue to be resolved in the context of this motion; however, this issue raises a very important sub-issue which I will address directly.

[15]            Mr. Lindsay stated that if I denied this adjournment, I would have to explain why Mr. Zündel is not allowed to pursue a challenge under the Charter. The IRPA states clearly at paragraph 3(3)(b) that the Act must be interpreted in accordance with the Charter. Even if this provision did not exist, there is no question that any ruling of the Court must be in accordance with the supreme law of the land.

[16]            By refusing this motion for an adjournment, I do not believe that I would be depriving Mr. Zündel of his Charter rights. Perhaps it is worthwhile to give a brief overview of the detention and certificate review so far.

[17]            On May 1^st, 2003, Mr. Zündel was detained under section 82 of the IRPA. Within 48 hours, in fact the next day, May 2^nd, I convened a conference call with the counsel on both sides. During that conference call, I informed the parties that I had commenced the review of the detention and the review of the material provided by the Ministers. I also informed the parties that I was available for the next two weeks to hear the parties. Unfortunately, counsel for Mr. Zündel was available only two days out of those two weeks. The first hearing was held on May 9^th, at which time Mr. Christie, then Mr. Zündel's counsel, advised me that he intended to present a constitutional challenge of the sections of the Act under which we were proceeding, that is, sections 77 to 83 of the IRPA.

[18]            Because mainly of Mr. Christie's schedule, the hearings were not on a continuous basis as I would have wished and had offered. Rather, the hearings were held on May 9^th and 16^th, July 28^th, 29^th and 30^th, September 23^rd and 24^th, November 6^th and 7^th and December 10^th and 11^th of 2003. The hearing for the constitutional issues was scheduled for November 6^th and 7^th, 2003 and both parties had provided their record days before. Just before the November 6^th hearing, Mr. Christie withdrew the constitutional challenge before this Court.

[19]            On November 18^th and 19^th, Madam Justice Benotto of the Ontario Superior Court of Justice heard a motion by Mr. Zündel for a writ of habeas corpus and a challenge to the constitutional validity of sections 77, 78, 80, 81, 82 and 83 of the IRPA. Justice Benotto declined jurisdiction, and stated in obiter that had she ruled on the constitutional challenge, she would have held it to be groundless, given the jurisprudence of the Supreme Court of Canada.

[20]            Several facts must be emphasized at this point. First, the time it was taking to decide on Mr. Zündel's detention, which was the basis for requesting the writ of habeas corpus, was not of the Court's making. The hearing dragged on for a number of reasons, one of which was that Mr. Zündel's counsel was often not available all through those months.

[21]            Second, Mr. Zündel's counsel chose to withdraw the constitutional question that was before me and place it before a judge of the Ontario Superior Court, thereby adding an inevitable delay since the judge held she did not have jurisdiction on a matter already before the Federal Court, in accordance with both the jurisprudence and the Court of Justice Act, R.S.O. 1990, c. 43.

[22]            Third, there was no valid reason to withdraw the constitutional challenge that was properly before me until November 2003. True, the Ministers had questioned whether a designated judge could hear a constitutional challenge, but this was not sufficient for me, or another judge of the Federal Court, not to hear the challenge. During the same period, Mr. Justice Simon Noël of this Court heard a constitutional challenge of the same provisions in the case of Re Charkaoui, and rendered a decision within a matter of months (Re Charkaoui, 2003 CF 1419).

[23]            An order has now been made on the issue of the detention, such that all that remains to be appealed before the Court of Appeal of Ontario is the stay ordered by Justice Benotto only in regards to the Charter challenge. If the Court of Appeal of Ontario were to overturn Justice Benotto's decision, the matter would be sent back since no trial judge has yet pronounced on it. The decision would likely be appealed, and it would wind its way up to the Supreme Court, if leave were granted. Obviously, to wait for an answer would require a very lengthy adjournment or stay of the proceedings before me.

[24]            The problem is that all this waiting is unnecessary. Mr. Zündel, through his lawyers, chose to withdraw the constitutional challenge before me to seek redress before the Ontario courts. The writ of habeas corpus was requested because the detention review was taking so long, but again this was due to a number of factors, including the unavailability of Mr. Zündel's own counsel. Now I am expected to wait because another forum is sought for the constitutional challenge, when we were ready to proceed in November. I cannot see that by denying the adjournment, I am the one depriving Mr. Zündel of his Charter rights.

[25]            Turning now to whether the motion for adjournment should be granted. The relevant provision is found in the Federal Court Rules, 1998, at rule 36:

[26]            I will deal with the motion as if it were a motion for a stay. I am comforted in this solution by the decision of Mr. Justice Rothstein, sitting as presiding member of the Competition Tribunal, who wrote as follows in the context of a motion to adjourn pending the outcome of the appeal of an interlocutory order that also dismissed a motion for disclosure (the decision of Mr. Justice Rothstein appears as an annex to Canada (Director of Investigation and Research) v. D & B Companies of Canada Ltd. , [1994] F.C.J. No. 1504 (F.C.A.)) :

The threshold question is the test to be employed by the Tribunal in considering whether to grant an adjournment of proceedings pending the outcome of an appeal of an interlocutory order made by it. ... While not every request for an adjournment would be decided by application of the principles governing a stay of proceedings, certainly an adjournment pending appeal has exactly the same result as a stay pending appeal. Counsel for the respondent conceded that an alternative open to him is to seek a stay from the Federal Court of Appeal. I do not understand why the Tribunal, in considering this adjournment application, would apply different principles than the Federal Court of Appeal on the stay application, both relating to the same proceedings. I am of the view that the principles applicable to stays of proceedings, which themselves are the same as the principles applicable to interlocutory injunctions, [RJR - MacDonald Inc. v. A.G. Canada, [1994] 1 S.C.R. 311 at 334.] are to be applied in the case of an application for an adjournment pending appeal.

[27]            The test enunciated in RJR-MacDonald, to which Justice Rothstein refers, had been applied by the Supreme Court of Canada in A.G. Manitoba v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110 as the appropriate test for a stay of proceedings:

Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interlocutory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. (RJR-MacDonald at 334).

Serious question to be tried

[28]            The decisions on adjournments and stays are generally made in the context of further possibilities of appeal once the determination of the main issue at trial is made (see Canada v. Ladouceur, [1976] F.C.J. 415; Beloit Canada Ltée/Ltd. v. Valmet Oy, [1987] F.C.J. No. 406). An adjournment will generally not be granted on an interlocutory decision when the issue can be brought up at the time of the appeal, if the interlocutory decision had an impact on the main determination. In the instant case, and that is Mr. Zündel's main argument, there will be no further appeal once the main issue, i.e. the reasonableness of the certificate, is decided. If the certificate hearing goes ahead, so Mr. Zündel argues, there will be no further possibility to correct any error made in the decision refusing additional disclosure of evidence.

[29]            Based on the scheme of the Act, it would appear contradictory to allow an appeal of an interlocutory matter when the main issue cannot be appealed; matters would drag on for months and years, where Parliament's intention was clearly to have matters quickly and definitively resolved. This is the reasoning in the Court of Appeal's decision in Charkaoui v. Ministre de la Citoyenneté et de l'Immigration et Solliciteur général du Canada, 2003 CAF 407 (Docket A-349-03) (F.C.A.), on the issue of detention within the certificate process, where the Court of Appeal decided that it would make no sense to allow an appeal on an ancillary matter where the main issue cannot be appealed or judicially reviewed. Such a reasoning would seem even more apt for a decision on evidence, given the extraordinary powers that Parliament grants the reviewing judge under section 78. In granting those powers, Parliament cannot have intended that the process could be stalled indefinitely by appeals on evidentiary rulings.

[30]            Not only is the possibility of the appeal itself in doubt, but I also have doubts as to the basis of the appeal. Mr. Zündel states in his motion of appeal that the Court erred in not granting him what had been granted to others in Re Jaballah, [2001] F.C.J. No. 1748 and Re Harkat, [2003] F.C.J. No. 1184. The wording of section 78 requires the judge to decide what can or cannot be disclosed in terms of the information to which the judge is privy but that could be injurious to national security if disclosed. In every case, the judge has to decide based on the evidence he or she has seen and based on the particular circumstances of the case. There can be no general rule nor precedent established because in one case the judge decides that a given measure is fitting.

[31]            Because the treshold of the serious question is low, I will assume without deciding, that there is a serious issue. I must add, however, that I am not altogether confident that adjourning for a month or two will enhance cooperation between the parties, as Mr. Lindsay has argued. In the eight months that the proceedings have lasted so far, I have seen little evidence of cooperation between the parties, and I do not see how waiting will improve the situation. Given the nature of the proceeding, which is governed by very special and exceptional rules, I do not expect the Crown to be more forthcoming with the evidence, nor do I expect Mr. Zündel to renounce any of the means at his disposal to fight the certificate. I certainly do not think that an adjournment would contribute to a smoother process.

Irreparable harm

[32]            Mr. Zündel pleads that not awaiting a decision on the evidence and on the constitutional issues would cause him irreparable harm. I have earlier partly responded to that argument. In a large measure, Mr. Zündel has orchestrated his strategy to force this Court to wait for an answer, invoking the harm that will be done if his Charter rights are not properly protected. In a large measure, Mr. Zündel is the author of his own misfortune. Irreparable harm cannot be harm that the person concerned inflicts upon himself; the Court is powerless to prevent that. Constitutional answers could have been sought within the same proceeding.

[33]            Mr. Zündel is facing a process which, regretfully, in itself constrains his rights. There will be no appeal of the certificate review. Mr. Zündel will not have access to all the evidence which may be held against him in determining if the certificate is reasonable. He is asking me, in effect, to wait until the Supreme Court of Canada pronounces itself on the constitutionality of these constraints. Setting aside the argument that such matters have already been decided by the Supreme Court of Canada, I cannot condone the way Mr. Zündel has chosen to proceed. This Court was the proper forum for hearing constitutional challenges. Mr. Zündel has chosen another forum; this Court has no obligations in regards to that decision. I am far from convinced that Mr. Zündel would suffer irreparable harm if an adjournment is not granted.

Balance of convenience

[34]            In establishing the process of review provided for in sections 77-83 of the IRPA, Parliament intended a streamlined and agile process to apply to inadmissibility procedures. Though Mr. Zündel has presented the issue as a matter of balance of convenience between Mr. Zündel, on the one hand, and the Crown, on the other, I believe that in a case such as this public interest is also at stake, to see matters resolved in an efficient manner. Mr. Zündel argues that expeditiousness must not supersede natural justice and fairness. I agree. Nor should delaying tactics impede the progress of the hearing. The balance of convenience clearly favours the Ministers.

[35]            The granting of an adjournment is discretionary. I have given substantial reasons for a ruling often simply given from the bench. I have stated this before, but it bears repeating, I understand how frustrating the certificate review is for Mr. Zündel and his lawyers. That being said, I find the test for granting an adjournment is not satisfied.

                                                                            ORDER

THIS COURT ORDERS that

-          The motion for an adjournment is dismissed;

-          The Ministers are entitled to one set of costs.

                    "Pierre Blais"                 

                         Judge

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             DES-2-03

STYLE OF CAUSE:                           In the matter of a certificate signed

pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act")

And in the matter of the referral of that certificate to

the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of the Act;

An in the matter of Ernst Zündel

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       November 6, 7, December 10, 2003

January 22, 23, 26, 27, 2004

REASONS FOR ORDER              The Honourable Mr. Justice Blais

AND ORDER:

DATED:                                                February 6, 2004

APPEARANCES:

Donald MacIntosh & Pamela Larmondin                                      FOR THE MINISTER

Department of Justice

Toronto, Ontario

Murray Rodych & Toby Hoffman         FOR THE

Canadian Security Intelligence Service SOLICITOR GENERAL

Legal Services

Ottawa, Ontario

Doug Christie                                                                                  FOR RESPONDENT

Barrister & Solicitor

Victoria, B.C.

Peter Lindsay & Chi-Kun Shi

Barristers and Solicitors

Toronto, Ontario