Date: 20111024
Docket:
A-380-11
Citation: 2011 FCA 294
Present: LÉTOURNEAU
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
MOHAMED ZEKI
MAHJOUB
Appellant
and
THE MINISTER OF IMMIGRATION AND
CITIZENSHIP
THE MINISTER OF PUBLIC SAFETY
Respondents
REASONS FOR ORDER
SHARLOW J.A.
[1]
This
proceeding is an appeal of an interlocutory judgment of the Federal Court dated
October 4, 2011, rendered in a proceeding under section 77 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). The Crown seeks
to quash the appeal for want of jurisdiction. The appellant Mr. Mahjoub opposes
the motion on the basis that this Court has the jurisdiction to entertain the
appeal. For the reasons that follow, I have concluded that the appeal should be
quashed.
Procedural
background
[2]
The
notice of appeal in this matter was filed on October 13, 2011. On October 18,
2011, Mr. Mahjoub submitted a notice of motion, supported by a two volume
motion record, seeking a stay of the October 4, 2011 order pending the
disposition of this appeal. That motion record has not yet been accepted for
filing.
[3]
Meanwhile
the Crown, presumably after having been served with the notice of appeal, sent
a letter dated October 17, 2001 to the Court, submitting that the notice of
appeal should not be filed because the Court has no jurisdiction to entertain
it. Mr. Mahjoub responded with a letter dated October 17, 2011 submitting that
the Court has the jurisdiction to entertain the appeal. By letter dated October
18, 2011, the Crown replied to Mr. Mahjoub’s submission.
[4]
On
October 19, 2011, I directed that a three judge panel of this Court would
determine the question of whether the appeal should be quashed, and that the
determination would be made without an oral hearing on the basis of the letters
referred to above. At the same time, I made an order staying the October 4,
2011 order of the Federal Court pending that determination.
[5]
Mr.
Mahjoub responded to the direction with a letter objecting to this matter being
determined without an oral hearing, and also pointing out that the issue of Mr.
Mahjoub’s right to appeal is also addressed in the submissions contained in the
motion record submitted October 13, 2011. The Crown argues that no oral hearing
is necessary.
[6]
I
remain of the view that no oral hearing is necessary. I will, however, take
into account the submissions of Mr. Mahjoub in his motion record that relate to
the issue of the Court’s jurisdiction to entertain the appeal.
Statutory
provisions
[7]
Pursuant
to paragraphs 27(1)(a) and (c) of the Federal Courts Act,
R.S.C. 1985, c. F-7, an appeal lies to this Court from any final or
interlocutory judgment of the Federal Court.
[8]
However,
that right of appeal may be barred by other statutes. There are numerous such
provisions in the IRPA. In some cases involving the IRPA, an appeal of a final
judgment of the Federal Court is barred unless the judge certifies that a
serious question of general importance is involved and states the question. For
example, a certified question is required by paragraph 74(d) to appeal a
final judgment on an application for judicial review of a decision,
determination or order made under the IRPA, by paragraph 79 to appeal a
determination of the Federal Court as to the reasonableness of a certificate
issued under section 77, and by section 82.3 to appeal a final judgment in a
detention review proceeding under any of sections 82 to 82.2.
[9]
Of
more importance to this case are the provisions of the IRPA that bar an appeal
of an interlocutory judgment. The relevant provision in this case is section
79, which bars an appeal of an interlocutory judgment in relation to
proceedings to determine the reasonableness of a certificate issued under
section 77.
[10]
There
have been instances in which this Court has found a statutory bar to be
inapplicable to an appeal that is prima facie within its scope. For
example, in Canada (Solicitor General) v. Subhaschandran, 2005 FCA
27, this Court entertained an appeal from an adjournment which, in the
particular factual circumstances, was interpreted as a refusal by the Federal
Court judge to exercise his jurisdiction and decide the case. This Court has
also held that a statutory bar to an appeal does not preclude a party from
challenging a decision on the basis of an allegation of a reasonable
apprehension of bias on the part of the judge (see, for example, Re Zündel,
2004 FCA 394).
[11]
However,
most attempts to avoid a statutory bar to an appeal fail. The most recent
example is Huntley v. Minister of Citizenship and Immigration, 2011 FCA
273. Paragraph 7 of the reasons for decision in that case read as follows:
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7. We agree that,
despite the apparently plain language of paragraph 74(d),
Parliament cannot have intended to immunize alleged errors from appellate
scrutiny which, if not subject to review, would undermine the rule of law and
public confidence in the due administration of justice. However, in our view,
the errors that the Judge is alleged to have committed in this case do not
fall within this narrow category.
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[12]
A
statutory bar to an appeal cannot be avoided merely by an allegation that the
decision sought to be appealed is based on one or more errors of law that are sufficiently
egregious that an appeal would certainly succeed if it were entertained: see Lazareva
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 181, and Canada
(Minister of Citizenship and Immigration) v. Edwards, 2005 FCA 176.
Facts
[13]
Mr.
Mahjoub is the subject of a certificate issued under section 77 of the IRPA
which was referred to the Federal Court. Proceedings to determine the
reasonableness of the certificate have been commenced before Justice Blanchard but
have not yet been concluded.
[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.
It reads as follows:
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1.
The
parties are to attend before Prothonotary Aalto at 9:30 a.m., on Wednesday
October 5, 2011, at the Federal Court in Toronto, Ontario, for the
purpose of developing a protocol for the separation of the co-mingled
documents. The protocol shall be established by Prothonotary Aalto, in
consultation with the parties. It shall permit the separation of the
documents in a manner that will limit prejudice to the parties.
2.
Each
party is to designate a person or persons, not a Solicitor of record, who is
able to identify the documents belonging to the party for the purpose of
dividing the co-mingled documents in the presence and under the supervision
of the Prothonotary pursuant to the protocol to be established for that
purpose.
3.
The
person or persons so designated by each party shall thereafter be excluded
from the respective litigation teams and shall be prohibited from
communicating with anyone about the nature or content of the materials
reviewed for the above stated purpose and shall sign an undertaking to that
effect with the Court.
4.
The
separated documents are to be returned to the respective parties.
5.
The
parties may make further argument on the nature and extent of any alleged
prejudice before the designated judge. To that end, Mr. Mahjoub may prepare a
description of any of the returned documents relied upon to demonstrate that
prejudice, which description shall not disclose any substantive information
that would be subject to solicitor-client or litigation privilege.
6.
Prothonotary
Aalto shall review and approve any description prepared by Mr. Mahjoub
against the document prior to the description being filed with the Court.
7.
Upon
the separation of documents, Prothonotary Aalto shall file a report on the
protocol followed to separate the documents. He may, in the exercise of his
discretion, also report on any other matter relating to the within order.
8.
In
the event of a dispute with respect to the interpretation of the within
order, the parties are free to return to the Court for direction.
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[16]
The
record does not disclose whether the parties have sought further direction
pursuant to section 8 of the order under appeal, and I assume they have not
done so.
[17]
On
October 13, 2011, Mr. Mahjoub filed a notice of appeal of the October 4, 2011 order.
He seeks an order setting the order aside, requiring Justice Blanchard to
determine the motion for a permanent stay on the basis of the submissions
filed, and deferring the process of separating the documents until after Justice
Blanchard determines the motion for a permanent stay.
[18]
The
notice of appeal sets out many grounds of appeal. Some of the grounds of appeal
overlap. Some are difficult to follow, undoubtedly because they are intended to
be explained in due course by more detailed submissions. Nevertheless I will
attempt to summarize them.
[19]
The
first ground of appeal asserts that the order under appeal is “not valid and
rendered without jurisdiction” because, to the extent that it requires persons
other than Mr. Mahjoub’s solicitors of record to view his privileged documents,
his right to communicate in confidence with his legal adviser is breached,
contrary to sections 7 and 8 of the Charter.
[20]
The
second and fifth grounds of appeal challenge the practicality, effectiveness,
necessity or factual basis of the order under appeal.
[21]
The
third and sixth grounds of appeal appear to be based on the premise that the
order under appeal necessarily requires Mr. Mahjoub to prove that he was
prejudiced by the alleged breaches of privilege. The argument is that Mr.
Mahjoub should be entitled to the benefit of a legal presumption of prejudice,
so that the Crown as the party in breach has the onus of proving that the
breach caused no prejudice.
[22]
The
fourth ground of appeal alleges a further breach of section 7 of the Charter,
as well as section 24, on the basis that it is unfair to require an inspection
of the documents to assess prejudice when it cannot be determined with
precision what the Crown has seen and possibly disseminated.
[23]
The
seventh ground of appeal alleges that the order under appeal is based on a
mistake of law in so far as it ignores the possibility that some of the
documents that came into the possession of the Crown may be missing.
[24]
At
the risk of oversimplifying the position of Mr. Mahjoub, it seems to me that
his fundamental complaint is that, through no fault of his own, he has suffered
a breach of a fundamental privilege that is his constitutional right, and it is
wrong in law to compel him to suffer a further breach of the same privilege in
the search for an appropriate remedy.
Positions of
the parties
[25]
The
Crown has moved to quash the appeal on the basis that the appeal is barred by section
79. The Crown’s letter dated October 17, 2001 indicates that the Crown is
relying on Re Zündel, 2004 FCA 145 at paragraphs 23 to 27, Froom v. Canada
(Minister of Citizenship and Immigration), 2003 FCA 331, and Zündel v.
Canada (Human Rights Commission) (C.A.), [2000] 4 F.C. 255, at paragraphs
10 to 15. The first of these cases deals with unsuccessful attempts to appeal a
decision in the face of a statutory bar in the IRPA. The third case deals with
the general principal that, barring special circumstances, decisions made in
the course of a hearing should not be challenged until the proceedings are
concluded.
[26]
Mr.
Mahjoub, in his letter to the Court dated October 17, 2011, argues that this
Court has the jurisdiction to entertain this appeal because the order sought to
be appealed is “invalid and rendered without jurisdiction as it violates his
fundamental rights such as his right to solicitor client privilege and to have
all his communications made in confidentiality with his lawyer respected
(sections 7 and 8 of the Charter).” He relies on paragraphs 17 and 18 of
Subhaschandran (cited above), which read as follows:
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17. Other decisions which reinforce my view are those in
which this Court has held that certain questions, including ones relating to
jurisdiction, are appealable, even in the presence of the express removal of
a right of appeal or right of judicial review on the main decision. In Zündel (Re), 2004 FCA 394, Létourneau J.A. found an
appeal based on reasonable apprehension of bias to be an exception to the
privative clause precluding an appeal or judicial review from a determination
of the reasonableness of a security certificate. Similarly, in Narvey v. Canada (Minister of Citizenship and Immigration) (1999), 235 N.R. 305 (F.C.A.),
Noël J.A. allowed an appeal, notwithstanding subsection 18(3) of the Citizenship Act [R.S.C., 1985, c. C-29]. He found that a
judge's bias, if demonstrated, would result in a lack of jurisdiction to
render a decision, and such decision would accordingly not be one
"under" section 18 of the Citizenship Act.
18. I would therefore allow the appeal, set aside the order
and send the matter back to the motions Judge with a direction that he
proceed to expeditiously make a decision on the application for a stay. In
the circumstances there will be no order as to costs.
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[27]
Mr.
Mahjoub also cites paragraph 48 of Charkaoui v. Canada, 2004 FCA 421,
which reads as follows:
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If it is agreed that the designated judge
may, in the exercise of the powers conferred by sections 80 and 83 of the
IRPA, make some decisions that are subject to appeal, then there should be no
further question as to his jurisdiction to make them. It seems obvious to us
that a decision on the constitutional validity of the IRPA has to do with the
jurisdiction of the Court and not the reasonableness of the certificate, that
it constitutes a separate, divisible judicial act, to repeat the words of
Lamer C.J. in [Canada (Minister of Citizenship and Immigration v. Tobiass,
Canada, [1997] 3 S.C.R. 391], and that it is consequently appealable.
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[28]
The
issue of Mr. Mahjoub’s right to appeal is discussed more fully in paragraphs 31
to 40 of the submissions included in the motion record submitted in support of
his motion for a stay of Justice Blanchard’s order pending appeal. Those
submissions read as follows:
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31. The Appellant is filing a notice of
appeal under subsection 27(1) of the Federal Courts Act from an Order
of the Honourable Mr. Justice Blanchard dated October 4, 2011.
32. The Order under appeal was rendered
in the context of the Appellant’s motion record for a permanent stay of
proceedings as a remedy pursuant to subsection 24(1) of the Charter
and section 50 of the Federal Courts Act for the violation of his
sections 7 and 8 rights under the Charter.
33. As mentioned in Charkaoui v.
Canada, 2004 FCA 421, par 43, a designated judge has the power to make
certain decisions that are subject to appeal.
34. The Federal Court of Appeal in Charkaoui
(supra) referred to the Supreme Court of Canada’s (herein referred to as
“SCC”) decision in Canada v. Tobiass, [1997] 3 S.C.R. 391 which upheld
the existence of the right of appeal.
35. The SCC held that the decision could
be appealed because the Federal Court’s power to order a stay does not stem
from its power under the Citizenship Act but is sourced in section 50
of the Federal Court Act. The SCC in Tobiass (supra) confirmed the
existence of the right of appeal accordingly:
“A
stay of proceedings is entered for reasons which are completely unrelated to
the circumstances surrounding the obtaining, retaining, renouncing or
resuming of citizenship. Indeed, a decision to order (or not to order) a stay
of proceedings is different from the type of determination that the Court is
called upon to make under subsection 18(1).” [ p. 414-415]
36. Mr. Mahjoub is entering his appeal in
a similar context. Justice Blanchard’s Order currently appealed was rendered
following Mr. Mahjoub’s motion for a permanent stay of proceedings under s.
50 of the Federal Courts Act, similarly to Tobiass, as well as
under s. 24 of the Charter.
37. Because the Order is entirely
unrelated to the circumstances surrounding the reasonableness of the
certificate and is the result of an excess of jurisdiction and other
jurisdictional errors [referring by footnote to the portion of the
submissions entitled “Serious questions to be tried”, which reflect the
grounds of appeal summarized above], the Order may be subject to appeal as
concluded by Charkaoui v. Canada, 2004 FCA 421, par. 48 and in Subhaschandran
2005 FCA 27. [Omitted: reproduction of paragraph 48 of Charkaoui and
paragraphs 17-18 of Subhaschandran, quoted above.]
38. In the circumstances of the Order
under appeal, it is clear that sections 82.3 and 74(d) of the IRPA do not
limit the Appellant’s right to appeal.
39. Indeed, Justice Blanchard’s decision
was not further to a judicial review and was not made under sections 82 to
82.2 of the IRPA, but in the context of Mr. Mahjoub’s motion pursuant to s.
50 of the Federal Courts Act and s. 24(1) of the Charter.
40. For these reasons, the Appellant
submits that the Order of October 4, 2011 can be appealed to the Federal
Court of Appeal.
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[29]
In
the Crown’s letter dated October 18, 2011, the Crown makes the following
submissions in response to Mr. Mahjoub’s letter dated October 17, 2011:
(a)
There
is no constitutional right to an appeal, even if a breach of the Charter
is alleged. The right to appeal is purely statutory. It is open to Parliament
to bar or limit a right of appeal, as it has done in the IRPA. The present case
does not come within the very narrow exception recognized in Tobiass.
(b)
Mr.
Mahjoub cannot circumvent the statutory bar to an appeal of an interlocutory decision
merely by raising a constitutional argument and casting the decision as one
going to jurisdiction. An error of law, in general, does not deprive a
presiding judge of jurisdiction (citing Canada (Minister of
Citizenship and Immigration) v. Aziz, 2011 FCA 18. Further,
the Supreme Court of Canada has repeatedly stated that courts should not “brand
as jurisdictional, and therefore subject to broader curial review, that which
may be doubtfully so” (citing Canadian Union of Public Employees, Local 963
v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 at page 233, as cited in Smith
v. Alliance Pipeline Ltd., 2011 SCC 7, at paragraph 36).
(c)
In
any event, the Supreme Court of Canada has cautioned against permitting a
proceeding to be fragmented by interlocutory proceedings that take on life of
their own (citing R. v. Mills, [1985] 1 S.C.R. 863, at paragraph 271).
The statutory prohibition on appeals of interlocutory decisions is intended to
avoid such fragmentation and the resulting delays.
(d)
Finally,
there is no factual foundation for Mr. Mahjoub’s appeal, because Justice
Blanchard has yet to determine whether any breach of solicitor and client
privilege has occurred. And it is clearly within his jurisdiction to deal with
matters of privilege and to exercise his discretion to craft appropriate
remedies to prevent prejudice from the disclosure of allegedly privileged
documents.
Discussion
[30]
It
is clear that the order sought to be appealed is an interlocutory decision
rendered in the course of proceedings under section 77 of the IRPA. Generally,
appeals from such decisions are barred by section 79.
[31]
It
is argued for Mr. Mahjoub that the jurisprudence of this Court establishes that
the statutory bar should not apply in this case. However, the cases upon which
he relies are not in any way analogous to the facts of this case. Tobiass and
other cases dealing with the Citizenship Act involve a statutory bar to
appeals that is more narrowly worded than the very broad prohibition in section
79 of the IRPA. It is not the case, as in Subhaschandran, that the
Federal Court judge refused to make a decision. There is no allegation or
evidence of a reasonable apprehension of bias, as there was in Re Zündel,
2004 FCA 394. There is no constitutional challenge to any legislation, as there
was in Charkaoui. The decision sought to be appealed is not, to
paraphrase Charkaoui, a judicial act that is separate and divisible from
the section 77 proceedings. On the contrary, the decision sought to be appealed
was rendered in the course of Justice Blanchard’s management of the section 77 proceedings,
and cannot be separated from them.
[32]
In
my view, there is nothing in the circumstances of this case that would justify
this Court in failing to respect the statutory bar. In this case, as in Huntley
(cited above), it cannot be said that the immunization of Justice Blanchard’s
decision from appellate scrutiny would undermine the rule of law or public
confidence in the due administration of justice. On the contrary, to permit
this appeal to proceed would result in an unacceptable fragmentation of the
Federal Court proceeding to determine the reasonableness of the certificate,
and would require this Court to make a decision on the basis of a factual
foundation that is, to say the least, incomplete.
Conclusion
[33]
For
these reasons, I would quash the appeal for want of jurisdiction. Although Mr.
Mahjoub’s motion for a stay would be rendered moot and should not be
determined, his motion
record should be filed because it was
referred to in the course of considering whether the appeal should be quashed.
“K.
Sharlow”
“I agree.
Gilles
Létourneau J.A.”
“I agree.
Eleanor R.
Dawson J.A.”
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