Jaballah, Re, 2006 FC 1058

Federal Court

Cour fédérale                             Date:20060508                                Docket: DES-04-01

 

Citation: 2006 FC 1058 Halifax, Nova Scotia, May 8, 2006

PRESENT: The Honourable Mr. Justice W. Andrew Mackay

BETWEEN:

IN THE MATTER OF a certificate pursuant to Section 40.1
of the Immigration Act, R. S. C. 1985, c. 1-2, 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,

CERTIFICATE

This certifies that the attached transcript of Reasons delivered orally in the course of hearings on May 2, 2006, constitutes the essence of Reasons given for the order issued orally that day whereby I dismissed the application by Mr. Jaballah to postpone hearings on the reasonableness of the security certificate issued in August 2001, and I adjourned further hearings for receipt of his evidence to May 15, 2006.

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1                                       Toronto, Ontario

2        Decision Rendered on Tuesday, May 2, 2006

3                  in Court File DES-4-01

4       Minister of Citizenship and Immigration and

5          Solicitor General v. Mahmoud Jaballah

6

7                    THE COURT: Good morning, all.

8                    I will give you my decision

9 orally, if I may, and then we will spend a bit of

10 time, not very much, on where we go from here.

11                    So far as the Applicant seeks an

12 order postponing the proceedings pending

13 determination by the Supreme Court of Canada of

14 three cases to be argued some six weeks hence, I am

15 not allowing the motion. That said, in the

16 circumstances of this week it seems to me that some

17 arrangements have to be made for further hearings.

18                     Let me talk a bit about the major

19 motion.

20                     Mr. Jaballah applies for an order

21 to postpone hearings arranged some six weeks ago,

22 with agreement of his counsel, first to meet his

23 request for leave to adduce evidence and then

24 hearings arran^ged for the week of May 15 for

25 argument addressing the reasonableness of the

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1 security certificate issued in August 2001. That

2 certificate certified the opinion of the Ministers

3 of the Crown concerned that Mr. Jaballah is

4 inadmissible to Canada on security grounds. The

5 certificate was then referred to this Court for

6 determination of its reasonableness.

7                     You may not like it, but I express

8 some disappointment. This is the second or third

9 scheduled hearing date for Mr. Jaballah to respond

10 to concerns underlying the Ministers' certificate.

11    It is at least the second time that his counsel

12 has brought forward on less than appropriate notice

13 motions that compel the Court in its concern for

14 some fairness in the process to postpone hearing

15 dates. It is at least the second occasion since

16 last September, when counsel had in effect said,

17 "Quite frankly, I am simply too busy with this and

18 other responsibilities to properly serve my

19   client's interest.'

20                     I am disappointed as well, if I

21 may note, that counsel, who were aware of the

22 circumstances at least a week ago of Mr. jaballah's

23 removal from Toronto to Kingston, did not then, so

24 far as I can judge, seek to discuss the matter with

25 counsel for the Crown. I am not certain that that

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1 is right, but that is my impression from the manner

2 in which correspondence was directed to me

3 yesterday.

4                     Going back to the motion, counsel

5 are agreed, and I agree as well, that the three‑

6 step test concerning a stay of proceedings is the

7 appropriate test to apply. In my opinion that test

8 is not here met. I acknowledge that there are

9 serious issues concerning the constitutional

10 validity of the process applicable under IRPA. The

11 constitutional validity of that process dealing

12 with certificate cases is raised now in other cases

13 before the Supreme Court of Canada. They may

14 arise, but they have not yet been argued, in this

15 case. I am always surprised at what may be argued

16 in this case, so I am not speculating on what may

17 be raised.

18                     In a technical sense, there is not

19 a serious issue yet in this case that is before

20 this Court. Nevertheless, I acknowledge that it is

21 likely that issues relating to this case are before

22 the Supreme Court of Canada and will be discussed

23 in the circumstances of other cases in the middle

24 of next month.

25                     The Applicant relies on YRI-York,

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1 a decision of the Federal Court of Appeal in 1988,

2 which concerned a motion to stay investigatory

3 processes leading to possible criminal proceedings

4 under the Competition Act, which proceedings were

5 undertaken pursuant to section 17 of the Combines

6 Act which had not yet previously been dealt with in

7 constitutional terms.

             8                    Here the Court is concerned with a

9 process already upheld as constitutional and valid

10 by the Federal Court of Appeal. Ahani and

11 Charkaoui both dealt with that. That remains the

12 law that I must apply and follow until the Supreme

13 Court of Canada, or Parliament acting within its

14 powers, determines otherwise.

15                     Let me acknowledge that there are

16 serious issues arising in this case, some of which

17 will be dealt with, I assume, in the argument and

18 hopefully addressed by the Supreme Court in other

19 cases. I acknowledge that there are serious

20   issues.

21                     I turn to irreparable harm. As I

22 read the decision in YRI-York, the principal

23 concern there underlying the Court's decision to

24 grant a stay of another tribunal's process, not the

25 Court's own as is here sought, was its concern over

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1 the potential misuse of information obtained by

2 investigatory processes that mi^ght later be found

3   to be invalid.

4                     Here the stay is sought to

5 preclude testimony which Mr. Jaballah sought leave

6 to adduce presumably to respond to the concerns of

7 the Ministers as disclosed by the summaries

8 released to Mr. Jaballah, b^y numerous public

9 documents on the record, by public testimon^y cf

10 officers of CSIS, and not about other matters.

11 There is much evidence in the public record of this

12 proceeding to which Mr. Jaballah simply has not yet

13 responded.

¹4                                If he does testify in this

15 proceeding, he will have the benefit of secticn 13

16 of the Charter, and you know that that provides

17 protection for a witness testifying in proceedings.

18   They then have the right not to have any

19 incriminating evidence so given used to incriminate

20 that witness in any other proceeding except in a

21 prosecution for perjury or for the giving of

22 contradictory evidence. Admittedly, that applies

23 in the criminal processes only hut, if necessary,

24 this Court would order that any testimony given in

25 this case by Mr. Jaballah not be used in any other

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1 proceedings, whether criminal, civil or

2 immigration, apart from this case and apart from

3 any prosecution for perjury in relation to the

4 testimony given.

5                     In any event, I am not persuaded

6 that in the circumstances of this case there is any

7 irreparable harm if the proceedings to hear Mr.

8 Jaballah are not postponed.

9                     In those circumstances and in

10 light of the public interest, the speedy resolution

11 of these proceedings, an interest that has been

12 ignored by me until now, among others, I simply do

13 not see that the balance of convenience favours Mr.

14 Jaballah. Indeed, the balance favours the

15 Ministers' position that the matter not be stayed.

16                     That is my decision in relation to

17 the application to postpone the hearing essentially

18   indefinitely.

19                     We are already in Tuesday of this

20 week's scheduled hearing, and I have said that Mr.

21 Jaballah would not be ordered to be present in the

22 court except on at least two clear days' notice, so

23 there is cne day left at the end of :his week.

24 am not sure, in light of what I know -- and it is

25 very little -- about the arrangements made for

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1 access by counsel to Mr. Jaballah at the moment,

2 whether that be in Kingston or Toronto. I am not

3 sure what those arrangements are.

4                     In the circumstances it seems to

5 me, unless counsel have a better idea, that we

6 ought to ensure that Mr. Jaballah is available for

7 at least the time that he might have been available

8 had he not been removed from Toronto in the five

9 days from April 24 to April 29 before this hearing

10 commenced, so that counsel have an opportunity to

11 finish their preparations. I would like counsel to

12 give me some estimate of how much time they

13 anticipate they would have with Mr. Jaballah in

14 that period of time.

15                     In any event, I want to leave it

16 to counsel for both parties, if I may, to work out

17 arrangements for Mr. Jaballah to be able to be

18 present for this testimony to be given to the

19 Court, if he wishes to testify, in the week of May

20 15, a week we have held for further hearings in

21 this matter. We have yet to find a time for

22 hearings in relation to the argument on the

23 reasonableness of the certificate.

24                     I would like to complete this

25 matter as quickly as I can. I am prepared to say

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1 that, if that has to be after the Supreme Court and

2 before the end of June, we will do it then.

        3                    Counsel may want to talk about

4 this. I do think counsel can work out co-operative

5 arrangements for dealing with Mr. Jaballah's

6 circumstances now so that he can testify 10 days from now, or almost two weeks from now,

8 satisfactorily. He has to determine whether he

9 wishes to do that. If he does, I can't believe

10 that counsel can't work it out.

       11                              MS JACKMAN: Maybe we should have

12 a break to talk about it.

       13                              THE COURT: I think so. I invite

14 you to canvass when you might hear argument on the

15 matter. I assume that a number of you may be

16 involved before the Supreme Court. I am not

17 asking.

       18                              MR. NORRIS: On this side, yes.

       19                              THE COURT: We will break for 15

20 minutes.

       21  --- Short Recess at 10:15 a.m.

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