Date: 20100927
Docket: A-260-10
Citation: 2010 FCA 245
Present: STRATAS
J.A.
BETWEEN:
THE PRIME MINISTER OF CANADA,
THE MINISTER OF FOREIGN AFFAIRS, and
THE MINISTER OF JUSTICE
Appellants (Respondents)
and
OMAR AHMED
KHADR
Respondent (Applicant)
AND
BETWEEN:
THE PRIME MINISTER OF CANADA and
THE MINISTER OF FOREIGN AFFAIRS
Appellants (Respondents)
and
OMAR AHMED KHADR
Respondent (Applicant)
REASONS FOR ORDER
STRATAS J.A.
[1]
The
respondent, Mr. Khadr, brings this motion in writing under Rule 369 for an
order expediting the hearing of this appeal.
[2]
The motion
shall be dismissed. Twice before, Mr. Khadr has sought this relief. Twice
before, this Court has refused it. I am bound by these earlier refusals, unless
Mr. Khadr can demonstrate, through evidence of a significant new development,
that there has been a marked change in circumstances. Mr. Khadr has not shown
this.
A. Background
[3]
The
Federal Court (2010 FC 715) ordered the appellants to develop a list of
potential remedies to address the Supreme Court’s finding that Mr. Khadr’s
rights under s. 7 of the Charter were infringed: Canada (Prime Minister)
v. Khadr, 2010 SCC 3. The appellants appealed to this Court. They also
moved for a stay of the judgment of the Federal Court until this Court
determines the appeal.
B. The motion for a
stay: Mr. Khadr’s request to expedite the appeal is refused
[4]
The
parties filed written submissions on the motion for a stay. In his written
submissions opposing the motion for a stay, Mr. Khadr emphasized “the urgency
of the present matter,” the “urgent circumstances,” the “imminent war crimes
prosecution” in the United
States, and the
commencement of that prosecution just four weeks from the date of his written
submissions. At the end of his written submissions, Mr. Khadr submitted that if
this Court were to grant the appellants’ motion and stay the Federal Court’s decision,
it should also expedite the appeal:
If, contrary to Mr.
Khadr’s submissions, this Court chooses to grant the Crown’s motion in whole or
in part, Mr. Khadr respectfully submits that the merits of this appeal [be]
heard and determined on an emergency basis. It is suggested that the appeal
should be conducted on the basis of the Application Records filed in the Court
below, together with any additional submissions which the parties may be able
to assemble on short notice. This appeal could be conducted by teleconference
or videoconference, and counsel for Mr. Khadr will make themselves available
any time at the Court’s convenience.
[5]
This Court
granted the appellant’s motion and stayed the Federal Court’s decision: 2010
FCA 199. However, in granting that relief, this Court did not impose the condition
that Mr. Khadr requested.
[6]
It is
true, as Mr. Khadr submits, that the reasons of the Court did not explicitly
discuss Mr. Khadr’s request for an expedited hearing. However, reading the
reasons of this Court as a whole, I conclude that this Court did consider
whether the appeal should be expedited. It simply did not accept that there was
the sort of urgency at that time that would justify an expedited hearing.
C. A second request to
expedite the appeal is refused
[7]
On July
27, 2010, five days after this Court rejected Mr. Khadr’s request for an
expedited hearing, counsel for Mr. Khadr sent a fax cover sheet to this Court. Again,
he requested an expedited hearing:
In relation to the above
matter, I confirm that the Respondent’s military commission trial remains
scheduled to recommence on August 9, 2010. Under these circumstances, we
request that this appeal be heard on an emergency basis, based upon the
application records filed in the Court below.
[8]
On July
29, 2010, the Court responded to this request by issuing a direction to the
parties. To the extent that there was any doubt after the first decision, the
Court resolved that doubt. It rejected the request for an expedited hearing.
[9]
In its
direction dated July 29, 2010, the Court stated that it would consider
expediting the appeal hearing if: (a) Mr. Khadr made his request in a formal
motion; (b) he made it after complying with the Federal Courts Rules and
serving a requisition for hearing; and (c) he provided valid reasons in support
of it. This was consistent with a Practice Direction, dated April, 2000, issued
by the Chief Justice concerning requests for expedited hearings:
Requests
for expedited hearings
Requests
for an expedited hearing must be made by motion and should normally not be made
before the time provided in the Rules for the filing of a Requisition for
Hearing.
A fair construction of this Court’s direction dated July 29,
2010 is that this Court was unwilling to permit a deviation from the normal
policy expressed in this Practice Direction.
D. The motion now before this
Court to expedite this appeal
[10]
In this
motion, Mr. Khadr offers to file his memorandum of fact and law no later than
five days from the receipt of the appellants’ memorandum. He seeks the earliest
possible hearing date the Court can offer, at any location in Canada.
[11]
Mr.
Khadr’s motion to expedite this appeal is based on essentially the same facts
that were before the Court on the two previous occasions. Mr. Khadr points to the
possibility that evidence obtained in violation of his s. 7 Charter
rights might be used against him in his United States trial. The trial is scheduled to resume
on October 18, 2010.
E. Constraints
on this Court concerning this motion
[12]
In dealing
with Mr. Khadr’s motion, I am severely constrained. Even if I were inclined to
expedite the matter, I am not free to reverse the two earlier decisions denying
relief merely because I disagree. A Justice of this Court does not sit in
appeal over earlier interlocutory rulings made by another Justice of this Court.
[13]
Nor can I
review the previous decisions and determine whether they are still warranted in
light of the current situation. In this regard, I disagree with the possible thrust
of the submission made by the appellants in paragraph 24 of their written submissions.
The appellants submit that “the decision[s]…not to expedite the appeal [remain]
appropriate.” That submission might be taken to suggest that this Court can be
invited to assess the ongoing circumstances and reverse the earlier decisions if
they no longer remain appropriate. This Court does not have the jurisdiction to
do such a thing, unless, of course, the earlier decisions in question permit it
to do so.
[14]
I am aware
that I have a very narrow, rarely exercised jurisdiction to reverse earlier
interlocutory decisions. A Justice of this Court can reverse earlier interlocutory
decisions where a moving party demonstrates, through evidence of a significant new
development, a marked change in circumstances: Del Zotto v. Canada (M.N.R.),
[1996] 2 C.T.C 22 at paragraph 12, 195 N.R. 74 (F.C.A.); Gould v. Canada,
2009 TCC 107 at paragraph 18, [2009] 6 C.T.C. 2165. This is a very high test: this
Court in Del Zotto described the circumstances where that test is
satisfied as “extraordinary.”
[15]
I
emphasize that what Mr. Khadr seeks in this motion is a complete reversal of
the earlier interlocutory decisions made by this Court, and not an amendment or
variation of relief that was previously granted. The very high test of requiring
“extraordinary” circumstances, described above, applies to the former
situation. The tests that may apply to the latter situation are not in issue
here.
F. Application of
these principles to the facts of this motion
[16]
In
accordance with the above principles, this Court considers itself bound by the
two earlier decisions of this Court described in paragraphs 4 to 9, above.
These decisions rejected Mr. Khadr’s request for an expedited hearing. This
Court is bound by those decisions.
[17]
In the evidence
filed on this motion, Mr. Khadr did raise a circumstance that arose after the
two earlier decisions of this Court: his trial in the United States was recently adjourned owing to the
illness of counsel and is now scheduled to restart on October 18, 2010.
[18]
However,
this is not really a new fact and it falls well short of the “marked change in
circumstances” necessary for the Court to exercise its extraordinary
jurisdiction. On the two previous occasions that Mr. Khadr sought an expedited
hearing from this Court, Mr. Khadr invoked the imminent start of his trial in
the United States. Both times, with knowledge
of that circumstance, this Court declined to expedite the appeal. The
circumstances now are substantially the same as before. This Court is bound by
its earlier decisions.
[19]
Therefore,
for the foregoing reasons, this motion is dismissed, with costs.
“David
Stratas”
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