Charkaoui, Re, 2004 FC 1562

                                                                                                                                  Date: 20041109

                                                                                                                             Docket: DES-3-03

Citation: 2004 FC 1562

Montréal, Quebec, November 9, 2004

Present:           MR. JUSTICE SIMON NOËL

BETWEEN:

IN THE MATTER OF a certificatepursuant to subsection 77(1) of theImmigration and Refugee Protection Act,signed by the Minister of Immigration andthe Solicitor General of Canada (the Ministers)S.C. 2001, c. 27 (the IRPA);IN THE MATTER OF the referralof this certificate to the Federal Courtof Canada pursuant to subsection 77(1)and sections 78 and 80 of the IRPA;IN THE MATTER OF the warrant for thearrest and detention and the review of thereasons justifying continued detention pursuantto subsections 82(1), 83(1) and 83(3) of the IRPA;AND IN THE MATTER OF a further

request for postponement of the hearing

scheduled in November and December 2004

and the annulment of the schedule.

REASONS FOR ORDER AND ORDER

[1]         This is another motion to suspend the schedule, which provides, inter alia, for a one-week hearing (beginning November 22, 2004) to review the reasonableness of the certificate establishing inadmissibility and a further week (beginning December 13, 2004) for the analysis of the lawfulness of the decision of the Minister's delegate in relation to the application for protection (protection report) in accordance with section 80 of the IRPA.

[2]         More specifically, Mr. Charkaoui is seeking:

·            A temporary stay of the proceeding under section 24 of the Canadian Charter of Rights and Freedoms (the Charter) accompanied by an order requiring the federal government to provide him with a paid attorney who can represent him.

·            An amendment of the schedule.

·            A judgment for provision for costs (evaluated at more than $60,000) to cover the fees and disbursements to be incurred for his representation.

·            Subsidiarily, an order authorizing Mr. Charkaoui's counsel to cease acting as his attorney and recognizing the law firm of Des Longchamps, Bourassa et Trudeau (Ms. Dominique Larochelle), Montréal Legal Aid, Criminal and Penal Matters, as Mr. Charkaoui's new attorneys.

·            Costs.

[3]         On September 15, 2004, the Court signed an order in which a schedule provided for two weeks of hearings (as mentioned above).

[4]         On September 24, 2004, the Federal Court of Appeal dismissed an application for a temporary suspension of the schedule and set down for November 8, 2004 the appeal of the judgment dated December 5, 2003 (Re: Charkaoui, 2003 FC 1419), dealing with the constitutionality of certain provisions of the IRPA.

[5]         In the context of the present motion, the Court has been informed that:

·            Mr. Charkaoui was informed on September 28, 2004, through his counsel, that he was eligible to receive legal aid and that a permanent counsel, Ms. Dominique Larochelle, had been assigned to represent him. His counsel further informed him that it was also possible that Ms. Larochelle would be getting additional support from another full-time colleague. (See affidavit of Mr. Jean Fauteux, interim director of the immigration legal aid office, Montréal, dated September 29, 2004, paragraph 11);

·            In view of the schedule that had already been established, Ms. Larochelle informed the Court that she could not act on behalf of Mr. Charkaoui because the time limit was too tight. She says she does not have enough time in which to reallocate the cases she is currently handling and to fulfill her professional duty to acquaint herself with the file. However, she explains: [translation] "I wish to assure you that if the Court were to agree to set a new schedule and new hearing dates that would reasonably allow us to fulfill our duties of representation, we would provide the assistance required by Mr. Charkaoui." (See letter of Ms. Larochelle, dated October 7, 2004);

·            During the hearing, the Court invited Ms. Larochelle to come and make representations so she could explain the position of Legal Aid and provide some idea of the time she would need in order to assume her duties. She said it was foreseeable that she would be prepared to act for Mr. Charkaoui if the hearing on the reasonableness of the certificate was set down in February 2005. (Submission made at the hearing on October 19, 2004).

[6]         It is now more than 17 months (the certificate was signed on May 16, 2003 and Mr. Charkaoui has been held since May 21, 2003) that the Court has been trying to proceed with the review of the reasonableness of the certificate (which is at the heart of these proceedings). However, for many reasons (the constitutional issue, the presentation of interlocutory applications, etc.) these numerous attempts have been unsuccessful.

[7]         On several occasions the Court of Appeal has reminded the parties that it must proceed expeditiously as a result of its statutory obligation (see paragraph 78(c) of the IRPA), and because of Mr. Charkaoui's detention, these reasons warranting an effective intervention.

[8]         Despite these numerous reminders, the hearing set aside for the analysis of the reasonableness of the certificate has still not taken place.

[9]         Notwithstanding these many delays, Mr. Charkaoui is again seeking a temporary postponement of the schedule, including a postponement of the hearing on the reasonableness of the certificate and the hearing on the lawfulness of the protection report.

[10]       Since legal aid is unable to comply with the Court's schedule, Mr. Charkaoui is asking for an order enjoining the federal government and the Ministers to bear his counsel's legal fees and provide for costs.

[11]       Although the Court would have preferred that legal aid could intervene and take up the defence for and on behalf of Mr. Charkaoui in a more diligent way that at the very least complies with part of the schedule already laid down, we must face the fact that it is currently impossible to achieve this objective. (See the submissions by Ms. Larochelle at the hearing of October 19, 2004.)

[12]       In view of Mr. Charkaoui's financial situation, it has been determined that he was entitled to benefit from legal services (see section 3.1 and subsections 4.7(8) and (9) of the Legal Aid Act, R.S.Q., c. A-14).

[13]       However, to ensure that Mr. Charkaoui has the benefit of legal services, legal aid, through Ms. Larochelle, needs some time in which to prepare. That being the case, a hearing on the reasonableness of the certificate could not be held before February 2005.

[14]       In these circumstances, the Court has a choice between imposing the schedule or submitting, regretfully, to a new schedule that takes into account the needs of legal aid. Since the legal aid services will not be operationally available for a hearing until February 2005, it would not be in the interest of justice or of Mr. Charkaoui to impose a schedule.

[15]       Consequently, the Court intends to give legal aid the necessary latitude to allow Mr. Charkaoui's legal representation. Ms. Larochelle says she can represent Mr. Charkaoui if the schedule was changed, the hearing dates set down for November and December 2004 were set aside and a new hearing to address the reasonableness of the certificate was scheduled in February 2005. The Court specifies that this gives plenty of time to legal aid to prepare.

[16]       So, the decision having been made to set aside the schedule and the November and December 2004 hearings, it becomes moot to discuss the request for payment of fees by the federal government or for provision for costs. The Court notes that it has previously denied a request for provision for costs concerning another aspect of the case (see the order in Charkaoui, 2004 FC 900, rendered June 23, 2004). Concerning the request for payment of fees by the federal government, it need not be addressed since the attorneys who will represent Mr. Charkaoui (including Ms. Larochelle) are full-time legal aid counsel. (See P.G. Québec v. C.(R.), REJB 2003 - 43771 (June 19, 2003) Q.C.A., at paragraph 138.)

[17]       In addition, Ms. Doyon seeks leave to be removed as counsel of record. She informed Mr. Charkaoui of her intention to withdraw from the case on October 7, 2004. In the circumstances, and especially considering that legal aid, through Ms. Larochelle, is stepping in to provide the legal services, the motion to be removed is allowed.

[18]       Mr. Charkaoui is again seeking costs. The Court has previously, on more than one occasion, refused this request. In immigration and refugee protection matters, it is not customary or traditional to grant such a request (see section 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22). In the present case, there is no reason that could warrant a different conclusion.

[19]       Before concluding, the Court hopes that the parties will agree on the development of one or two schedules (for each of the hearings). However, the Court decides on a peremptory basis that the hearing on the reasonableness of the certificate will be held February 21 to 25, 2005, in Montréal. The hearing on the lawfulness of the protection report is scheduled for April 4, 5, 6, 7 and 8, 2005.

[20]       If the parties are unable to agree within a reasonable time, the Court will finalize the schedules on request. The Court peremptorily establishes the hearing dates in view of the numerous requests for postponement, the statutory obligation to proceed expeditiously and the fact that Mr. Charkaoui is still in detention. Finally, the Court would like to reiterate that the period granted gives the parties plenty of time in which to prepare in a case of this nature.

[21]       Since Mr. Charkaoui is still in detention and there has still been no determination in regard to the certificate, subsection 83(2) of the IRPA stipulates that the permanent resident (in this case Mr. Charkaoui) shall appear before the court every six months for a review of the reasons justifying his continued detention. Since Mr. Charkaoui's most recent appearance occurred on July 23, 2004 (Re: Charkaoui, 2004 FC 1031), the Court schedules the next appearance for this purpose for January 10, 2005, at 9:30 a.m. in Montréal.

FOR THESE REASONS, THE COURT ORDERS THAT:

·            The motion to suspend the schedule is allowed in part;

·            The schedule and the hearings scheduled for November and December 2004 are cancelled;

·            The request for payment of fees by the federal government is denied;

·            The provisional request for fees is denied;

·            Ms. Doyon's request to be removed as counsel is allowed;

·            The legal firm Des Longchamps, Bourassa et Trudeau (Ms. Dominique Larochelle) is authorized to act for and on behalf of Mr. Charkaoui in this case;

·            The hearing on the reasonableness of the certificate is set down for February 21, 22, 23, 24 and 25, 2005, peremptorily, and the Ministers shall do what is necessary to ensure that Mr. Charkaoui is present at 30 McGill Street, Montréal, Province of Quebec, for 9:30 a.m., on those hearing days;

·            The hearing on the lawfulness of the protection report is set down for April 4, 5, 6, 7 and 8, 2005, peremptorily, and the Ministers shall do what is necessary to ensure that Mr. Charkaoui is present at 30 McGill Street, Montréal, Province of Quebec, for 9:30 a.m., on those hearing days;

·            Mr. Charkaoui shall appear for review of his detention on January 10, 2005, in Montréal, at 9:30 a.m., at 30 McGill Street, and the Ministers shall do what is necessary to ensure his presence;

·            Without costs.

                          "Simon Noël"

                                Judge

Certified true translation

Jacques Deschênes, LL.B.

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            DES-3-03

STYLE:                                                IN THE MATTER OF a certificatepursuant to subsection 77(1) of theImmigration and Refugee Protection Act ,signed by the Minister of Immigration andthe Solicitor General of Canada (the Ministers)S.C. 2001, c. 27 (the IRPA);IN THE MATTER OF the referralof this certificate to the Federal Courtof Canada pursuant to subsection 77(1)and sections 78 and 80 of the IRPA;IN THE MATTER OF the warrant for thearrest and detention and the review of thereasons justifying continued detention pursuantto subsections 82(1), 83(1) and 83(3) of the IRPA;

AND IN THE MATTER OF a further request for postponement of the hearing scheduled in November and December 2004 and the annulment of the schedule.

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        October 19, 2004

REASONS FOR ORDER

AND ORDER:                                    MR. JUSTICE SIMON NOËL

DATED:                                              November 9, 2004

APPEARANCES:

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

Montréal, Quebec

FOR THE SOLICITOR GENERAL OF CANADA AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Doyon, Morin

Montréal, Quebec

FOR ADIL CHARKAOUI

Montréal Legal Aid

Montréal, Quebec

FOR ADIL CHARKAOUI