Date: 20121115
Docket: A-313-12
Citation: 2012 FCA 296
Present: STRATAS
J.A.
BETWEEN:
MOHAMED
ZEKI MAHJOUB
Appellant
and
MINISTER OF IMMIGRATION AND
CITIZENSHIP
MINISTER OF PUBLIC SAFETY and THE
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
STRATAS J.A.
A. This
motion
[1]
Mr.
Mahjoub moves for an order:
● requiring
the Attorney General to reimburse him for his counsel fees and disbursements in
this appeal;
● in
the alternative, requiring the respondents to pay him an award of costs before
the hearing and determination of this appeal;
● in
the further alternative, a six-month suspension of the appeal pending in this
Court so he can raise funds for legal representation or obtain pro bono
legal representation to prosecute his appeal.
B. The
nature of the appeal in this Court
[2]
Mr.
Mahjoub is named in a security certificate signed by the respondent Ministers
under subsection 77(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
[3]
The
certificate has been referred to the Federal Court. During ongoing,
lengthy proceedings, the Federal Court is examining whether the
certificate should be upheld as reasonable.
[4]
This
appeal is from an abuse of process ruling made by the Federal Court (per Justice
Blanchard): 2012
FC 669.
Only a cursory explanation of the nature of the abuse of process ruling is
necessary at this time.
[5]
Certain
confidential materials belonging to Mr. Mahjoub were commingled with those of
the Ministers. Mr. Mahjoub alleged that this constituted an abuse of process.
He brought a motion to stay the Federal Court’s proceedings permanently and for
other relief, invoking, among other things, sections 7, 8 and 24(1) of the
Charter.
[6]
As
a first step in determining Mr. Mahjoub’s motion, the Federal Court judge
wanted to assess the possible prejudice caused to Mr. Mahjoub. So he
established a protocol under which the commingled documents could be separated
and returned to Mr. Mahjoub. The Federal Court judge then assessed the
prejudice to Mr. Mahjoub and ruled on his motion to stay the proceedings
permanently.
[7]
In
his ruling, the Federal Court judge found that the Minister had committed an abuse
of process. However, he declined to stay the proceedings permanently. In his
view, if the proceedings continued, certain commingled documents would not be
used in a prejudicial way.
[8]
Nevertheless,
the Federal Court judge granted Mr. Mahjoub some relief for the abuse of
process. The Federal Court judge ordered that persons on the Minister’s
litigation team be permanently removed from the file and barred from discussing
and accessing file materials. In the judge’s view, this remedy was reasonably
capable of removing any prejudice suffered by Mr. Mahjoub.
[9]
Mr.
Mahjoub has appealed from the ruling of the Federal Court judge. This is the
appeal presently before this Court. Mr. Mahjoub’s motion for state funding
arises within this appeal.
C. Analysis
[10]
The
primary relief Mr. Mahjoub seeks in this motion is court-ordered state funding
for legal representation in his appeal before this Court.
[11]
His
request is put in two different ways. In the first, he seeks complete funding,
under R.
v. Rowbotham
(1988), 41 C.C.C. (3d) 1 (Ont. C.A.) and its progeny. In the second,
he seeks partial funding, through “advance costs,” under British
Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371 and its progeny.
[12]
These
two lines of authority have developed separately. But they are aimed at the
same thing: court-ordered state funding for legal representation. Therefore,
unsurprisingly, the tests prescribed by these lines of authority share some features.
[13]
As
shall be shown below, one feature common to both is that court-ordered state
funding for legal representation is an absolute last resort. Among other
things, a moving party must demonstrate that there is no other way in which the
moving party can obtain legal representation.
[14]
In
this respect, the appellant’s evidence falls short of the mark.
(1) Orders
for complete or substantial funding: Rowbotham and its progeny
[15]
To
promote trial fairness in criminal prosecutions, in narrow circumstances courts
have been prepared to order a stay of proceedings
unless the Crown funded an accused in
whole or in part: Rowbotham, supra. Accused persons are
entitled to this relief if they are (a) indigent,
(b) not eligible for legal aid, (c) unable to represent themselves adequately
and (d) involved in a serious and complex legal proceeding affecting their
liberty.
[16]
In
the criminal context, a number of courts have emphasize the need for an accused
seeking a Rowbotham order to establish that significant efforts have
been made to find other legal representation or funding: see e.g. R. v. Rain, 1998 ABCA 315 at paragraph 88; R. v. Malik, 2003
BCSC 1439; R
v Dew (E.J.), 2009 MBCA 101 at paragraphs 22, 25 and 98; R.
v. Rushlow, 2009 ONCA 461 at paragraphs 28-30.
[17]
Rowbotham and its
progeny are limited to entitling an accused person, in appropriate and rare
circumstances, to a stay if funding is not granted. But in New Brunswick
(Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46,
the Supreme Court extended this sort of relief in two ways: an order requiring
state funding of a litigant, rather than just a stay, can be made, and such an
order can be made in certain civil proceedings.
[18]
In
G.(J.), the Supreme Court of Canada ordered funding for a litigant in
child welfare proceedings where section 7 Charter rights were implicated. However, factually, G.(J.)
was an exceptional case. The Supreme Court ordered funding because the litigant
had convinced it, among other things, that the litigant had no other way of
securing legal representation.
[19]
Applications
for court-ordered state funding for legal representation are most rare in the
Federal Courts. Two authorities on point, however, are consistent with G.(J.)
in that they require the applicant to demonstrate, among other things, that,
absent an order for state funding, there is no other way in which legal
representation can be obtained. In other words, court-ordered state funding is
a last resort.
[20]
In
Canada (Minister for Public Safety and Emergency Preparedness) v.
Muse, 2005 FC 1380, the Federal Court dismissed an application for state
funded legal counsel brought on the basis of Rowbotham. The Federal
Court found that the litigant had access to legal services in earlier stages to
the proceeding and was not “indigent.” Overall, the Court was not satisfied
that court-ordered state funding was a last resort.
[21]
The
only recorded instance of a Rowbotham application for state funded legal
counsel in this Court is A.B. v. Canada (Minister of Citizenship and
Immigration) (2001), 197
F.T.R. 320 (C.A.). In A.B., the litigant was receiving
provincial legal aid funding but claimed that the amounts provided were
insufficient. This Court found that the federal government was not
constitutionally obligated to top-up the litigant’s funding, especially since
the federal government had already contributed to the provincial scheme.
[22]
Importantly,
in A.B., the reasons of the Court show no indication that the litigation
would have to be discontinued without further funding. Indeed, the litigant had
some funding and simply desired and needed more. A.B. was not a case
where the litigant had explored every possible means of obtaining funds for
counsel or pro bono or reduced-rate counsel.
[23]
For
completeness, I would note that on one occasion this Court, on its own motion,
ordered the Crown “if necessary” to financially assist an employment insurance
claimant in obtaining counsel to advance a submission: Canada (Attorney General) v.
Purcell, [1995] F.C.J. No. 1331 (C.A.). The words “if necessary”
are consistent with the requirement that court-ordered state
funding be a last resort, not a first resort or even an intermediate resort.
(2) Advance
costs orders: Okanagan and its progeny
[24]
In
Okanagan Indian Band, supra, the
Supreme Court reaffirmed courts’ ability to grant an award of costs in favour
of a litigant in advance of the determination of the matter. Such advance costs
awards were said to be available upon a demonstration of the moving party’s
inability to proceed with the case due to impecuniosity, a
prima facie case of sufficient merit, and special circumstances
justifying an extraordinary exercise of discretion.
[25]
In
this test, the Supreme Court did not explicitly require the moving party to
show that no other sources of funding were available. But that was arguably
inherent in the requirement that special circumstances be shown.
[26]
Any
doubt on this was cleared up in Little Sisters
Book and Art Emporium v. Canada (Commissioner of Customs and Revenue Agency), 2007 SCC 2, [2007] 1 S.C.R.
38. There, the Supreme Court confirmed that the moving party must “explore all
other possible funding options” including “public funding options,” “other
programs designed to assist various groups in taking legal action,” and
“private funding” including “fundraising campaigns, loan applications,
contingency fee agreements and any other available options” (at paragraph 40).
See also R. v. Caron, 2011 SCC 5,
[2011] 1 S.C.R. 78 at paragraph 41.
[27]
Quite consistently with these holdings, this Court has emphasized
the obligation of a moving party to provide a very complete account of
all potential sources of funding, including friends and family: Al Telbani v. Canada (Attorney General), 2012 FCA 188. Bald statements will not suffice: Metrolinx
(GO Transit) v. Canadian Transportation Agency, 2010 FCA 45 at paragraph
10.
(3) Application
of these principles
[28]
Mr. Mahjoub filed three affidavits in support of his motion: one
from himself, one from an assistant in his lawyers’ office, and a final one
from one of his lawyers. This evidentiary material establishes the following:
● Mr. Mahjoub does “not possess the necessary funds
to pay for the fees/disbursements required by counsel.” He does not have
savings or other income. Further, he is under house arrest and is not working.
● His counsel’s fees and disbursements for this
appeal are not covered by legal aid funding. His counsel will not continue to
act on his behalf without funding.
● Mr. Mahjoub wants his counsel to continue to
represent him on the appeal because they have been his counsel throughout the
security certificate proceedings.
● Mr. Mahjoub does not have the legal skills
necessary to prepare the oral and written argument for the appeal, including
language ability.
[29]
This
evidence falls well short of establishing that court-ordered state funding is
necessary as a last resort. There is no evidence that Mr. Mahjoub has taken any
steps to raise funds or search for counsel willing to act on a reduced fee or pro
bono basis.
[30]
Indeed,
Mr. Mahjoub has conceded this in asking that the progress of this appeal be
suspended for six months. During the six months, he intends to engage in
fundraising or seek pro bono counsel.
[31]
In
the circumstances, Mr. Mahjoub seems to have sought court-ordered state funding
as a first resort, not as a last resort.
[32]
Therefore,
for the foregoing reasons, this motion must be dismissed.
[33]
In
closing, I note that the respondents urged that court-ordered
state funding is not available in security certificate cases, or in this
particular appeal. In the alternative, they urged that Mr. Mahjoub did not meet
the other requirements for obtaining court-ordered state funding. I express no
comment on these issues.
D. The
motion to suspend the appeal for six months
[34]
As
previously mentioned, the appellants ask that the appeal be suspended in order
to engage in fundraising and investigation into the availability of pro bono
counsel.
[35]
This
Court can delay an appeal when it is in the interests of justice to do so: Mylan Pharmaceuticals ULC v.
AstraZeneca Canada, Inc., 2011 FCA 312.
[36]
On
June 29, 2012, the appellant filed his notice of appeal. On August 13, 2012, he
filed an agreement on the contents of the appeal book. All that remains is the
production of the appeal book, the preparation and filing of a memorandum of
fact and law, and the filing of a requisition for hearing.
[37]
I
consider the request for a suspension of the appeal to be premature. In the
next two months, Mr. Mahjoub might be able to locate pro bono or
reduced-rate counsel or raise funds for legal representation. Then he can file
the appeal book and memorandum, along with a simple motion for an extension of
time for doing so. At that point, with only a minimum of delay, the appeal will
be back on track.
[38]
If
that is not done, two months from now the Court will automatically issue a
notice of status review under Rule 382.2. Under Rule 382.3(1), Mr. Mahjoub will
have to respond to the notice, failing which his appeal will be dismissed. As
part of that response, I expect that Mr. Mahjoub will supply the Court with
information concerning his efforts to fundraise or to locate pro bono or
reduced-rate counsel since the date of this motion. Also as part of that
response, Mr. Mahjoub can make submissions concerning the timing of the
remaining steps in the appeal.
E. Conclusion
[39]
Therefore,
Mr. Mahjoub’s motion is dismissed. The respondents have not asked for costs and
none shall be awarded.
"David Stratas"
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