Date:
20120803
Docket: A-313-12
Citation: 2012 FCA 218
Present: DAWSON J.A.
BETWEEN:
MOHAMED ZEKI MAHJOUB
Appellant
and
THE MINISTER OF IMMIGRATION AND
CITIZENSHIP
THE MINISTER OF PUBLIC SAFETY
Respondents
REASONS FOR ORDER
DAWSON J.A.
[1]
The
appellant, Mohamed Zeki Mahjoub, is named in a security certificate signed by
the respondent Ministers pursuant to subsection 77(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act). The certificate has
been referred to the Federal Court, which is in the process of determining
whether the certificate is reasonable.
[2]
By
notice of motion dated September 16, 2011, Mr. Mahjoub sought the following
relief in the Federal Court:
a. A permanent stay of
proceedings in conformity with sections 7, 8 and 24(1) of the Canadian
Charter of Rights and Freedoms, [Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c. 11] (hereinafter the Charter)
and section 50 of the Federal Courts Act [R.S.C. 1985, c. F-7];
b. An order for the
release without conditions of the Applicant;
c. An order reserving the
right of the parties to present further submissions for the retrieval, sealing
or destruction of the commingled material;
d. In the alternative,
such further and other remedy as this Honourable Court considers appropriate
and just in the circumstances including the removal of Department of Justice
counsel and legal staff on record and Canadian Border Services Agency and
Canadian Security Intelligence Service staff.
[3]
On
May 31, 2012, a designated judge of the Federal Court (Judge) granted the
motion in part. The Judge permanently removed a number of members of the
respondent Ministers’ litigation team from the file. All other relief sought on
the motion was denied.
[4]
On
June 29, 2012, Mr. Mahjoub filed a notice of appeal in this Court from the
order of the Judge.
[5]
The
Ministers now move in writing for an order quashing the appeal pursuant to
subsection 52(a) of the Federal Courts Act. Subsection 52(a)
allows the Court to “quash proceedings in cases brought before it in which it
has no jurisdiction”.
Statutory Provisions
[6]
As
this Court observed in Mahjoub v. Canada (Minister of Citizenship and
Immigration), 2011 FCA 294, 426 N.R. 49 (Mahjoub #1) at paragraph 7 and
following, paragraphs 27(1)(a) and (c) of the Federal Courts
Act generally provided an appeal to this Court from any final or
interlocutory judgment of the Federal Court. This right may, however, be barred
by other statutes.
[7]
The
relevant legislative provision in this case is section 79 of the Act. Section
79 provides:
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79. An
appeal from the determination may be made to the Federal Court of Appeal only
if the judge certifies that a serious question of general importance is
involved and states the question. However, no appeal may be made from an
interlocutory decision in the proceeding.
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79. La
décision n’est susceptible d’appel devant la Cour d’appel fédérale que si le
juge certifie que l’affaire soulève une question grave de portée générale et
énonce celle-ci; toutefois, les décisions interlocutoires ne sont pas
susceptibles d’appel.
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The Positions of the Parties
[8]
The
Ministers assert that the appeal of the Judge’s order:
[…] denying his motion to stay
the reasonableness hearing should be quashed for want of jurisdiction. It is an
attempted appeal of an interlocutory decision made in the course of a
proceeding under section 77 of the IRPA. Such an appeal is explicitly
barred by the privative clause in section 79 of the IRPA. This Court has
recognized that this privative clause has a broad scope and precludes appeal of
decisions made in the course of a section 77 proceeding. The Appellant has no
right of appeal in these circumstances.
[9]
The
Ministers place considerable reliance upon this Court’s decision in Mahjoub #1.
As the Court explained in those reasons, at paragraphs 14 and 15, the order
then under appeal was made in the following circumstances:
14 In
the course of the section 77 proceedings, the Crown came into possession of
documents belonging to counsel for Mr. Mahjoub which contain information that
Mr. Mahjoub says is subject to solicitor and client privilege and litigation
privilege. The documents in issue became commingled with documents belonging to
the Crown. Mr. Mahjoub brought a motion before Justice Blanchard for a
permanent stay of the proceedings on the basis of sections 7, 8 and 24(1) of
the Canadian Charter of Rights and Freedoms. The
Crown opposed the motion.
15 Justice Blanchard heard the motion on October 3,
2011 and reserved his decision. It appears that in the course of the hearing,
Justice Blanchard concluded that in order to determine the remedy, if any, that
would be appropriate in the circumstances, it would be necessary to have the
commingled documents separated and returned to the respective parties so that
they would be in a position to make specific submissions on the nature and
extent of the alleged prejudice. In that context, Justice Blanchard made the
order under appeal on October 4, 2011. […]
[10]
The
order then under appeal established a process for the commingled documents to
be separated and returned to the respective parties. This Court quashed the
appeal from such order for want of jurisdiction.
[11]
The
Ministers argue that in Mahjoub #1 this Court found that the order then under
appeal was rendered in the course of the section 77 proceedings. They assert
that “[g]iven that finding, the decision on the stay motion itself must also
have been rendered in the course of the section 77 proceedings and is similarly
covered by the privative clause in section 79.”
[12]
For
his part, Mr. Mahjoub argues that:
[…] s. 79 of the IRPA has
no application to this appeal and […] this appeal is governed by section 27 of
the [Federal Courts Act]. While the application arose in the context of
a hearing under the IRPA, the nature of the application had nothing to
do with the determination of the reasonableness of the certificate or of the
Appellant’s release conditions and it is not judicial review covered by section
72 of the IRPA. The application was an application for a stay based on
government seizure of privileged documents of an adverse party. Section 79 of
the IRPA only requires certifications for appeals of decisions on the
reasonableness of a security certificate and only bar appeals from
interlocutory decisions related to the certificate. A final order on an
application for a stay under s. 50 of the [Federal Courts Act] or under
section 7 or 24 of the Charter is clearly not an interlocutory decision
related to the reasonableness of the certificate. Finally, where, as here, the
refusal of a stay goes to jurisdiction, the decision is not under s. 79 of the IRPA
and the section does not apply.
The standard to be met on a motion
to quash
[13]
In
Arif v. Canada (Minister of Citizenship and Immigration), 2010 FCA 157,
405 N.R. 381 a panel of Judges of this Court considered whether the Court
possessed jurisdiction to hear an appeal from the Federal Court or whether the
jurisdiction was ousted by subsection 14(6) of the Citizenship Act,
R.S.C. 1985, c. C-29. A judge of this Court, sitting alone, had previously
denied a motion to quash the notice of appeal on jurisdictional grounds. At
paragraph 9 of its reasons, this Court characterized the issue before the
single judge on the motion to quash to be “whether it was ‘plain and obvious’
that the appeal […] had no chance of success (Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959).” The decision of the single judge denying the motion
to quash “[a]t most” indicated “that he was not convinced at that juncture that
the Court was without jurisdiction to hear the appeal”.
[14]
The
test I will apply to this motion, therefore, is whether it is plain and obvious
that the Court is without jurisdiction to hear the appeal.
Discussion
[15]
I
am unable to conclude that it is plain and obvious that this Court is without
jurisdiction to hear the appeal. Therefore, the motion to quash will be
dismissed and the judges of this Court appointed to hear this appeal will determine
whether this Court has jurisdiction.
[16]
Because
the panel appointed to hear this appeal will decide the issue of jurisdiction,
my reasons are brief and should be seen as relevant only to the application of
the plain and obvious test.
[17]
The
privative provision relied upon by the Ministers, section 79 of the Act, must
be read in the context of section 78 of the Act. Together they read:
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78. The
judge shall determine whether the certificate is reasonable and shall
quash the certificate if he or she determines that it is not.
79. An
appeal from the determination may be made to the Federal Court of Appeal
only if the judge certifies that a serious question of general importance is
involved and states the question. However, no appeal may be made from an
interlocutory decision in the proceeding. [emphasis added]
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78. Le
juge décide du caractère raisonnable du certificat et l’annule s’il ne
peut conclure qu’il est raisonnable.
79. La
décision n’est susceptible d’appel devant la Cour d’appel fédérale que si
le juge certifie que l’affaire soulève une question grave de portée générale
et énonce celle-ci; toutefois, les décisions interlocutoires ne sont pas
susceptibles d’appel. [Non souligné dans l’original.]
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[18]
In
my view, relying upon the decision of the Supreme Court of Canada in Canada
(Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391,
particularly at paragraphs 44 to 66, it is fairly arguable that the decision of
the Federal Court either to refuse or grant a stay of the security certificate
proceeding was neither a determination whether the security certificate is
reasonable, nor an interlocutory decision made in the proceeding. It is,
therefore, not plain and obvious that section 79 applies to this appeal so as
to oust the jurisdiction of the Court under subsection 27(1) of the Federal
Courts Act.
[19]
To
the extent that the Ministers rely upon Mahjoub #1, it is, in my view, fairly
arguable that the decision can be distinguished on the ground that it turned on
this Court’s characterization of the order then under appeal to be an
interlocutory decision rendered in the course of proceedings under section 77
of the Act that fell squarely within section 79 of the Act.
Conclusion
[20]
For
these reasons, the motion to quash the appeal will be dismissed.
“Eleanor
R. Dawson”
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