Date: 20040924
Docket: A-603-03
Citation: 2004 FCA 319
Present: THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
ADIL CHARKAOUI
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
SOLICITOR GENERAL OF CANADA
Respondents
Hearing held by teleconference at Ottawa, Ontario, on September 24, 2004.
Order delivered at Ottawa, Ontario, on September 24, 2004.
REASONS FOR ORDER: LÉTOURNEAU J.A.
Date: 20040924
Docket: A-603-03
Citation: 2004 FCA 319
Present: THE HONOURABLE MR. JUSTICE LÉTOURNEAU
BETWEEN:
ADIL CHARKAOUI
Appellant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
AND
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER
LÉTOURNEAU J.A.
[1] A security certificate has been issued against the moving party, Adil Charkaoui, under subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). It alleges that Mr. Charkaoui is a person contemplated by paragraphs 34(1)(c), 34(1)(d) and 34(1)(f) of the Act, in short that he is engaged in terrorism, that he is a danger to national security, and that alone or as a member of an organization he engages, has engaged or will engage in terrorist acts. The certificate has the effect of prohibiting him from entering or remaining in Canada.
[2] He had been arrested pursuant to a warrant of arrest in May 2003, a warrant authorized under section 82 of the Act. He has been in detention since.
[3] The Federal Court had been called on to determine the reasonableness of the certificate in accordance with section 80 of the Act. The moving party raised preliminary objections to a hearing on the reasonableness of the certificate. By motion, he raised the unconstitutionality of sections 33 and 77 to 85 of the Act in relation to the arrest, detention, review of the detention as well as the review of the certificate. It is unnecessary to pursue this issue of unconstitutionality any further, except to say that, in a decision dated December 5, 2003, the judge who heard the motion found that these provisions were constitutional and dismissed Mr. Charkaoui's motion. This decision by the motions judge was appealed and the case is ready for hearing. Furthermore, in the motion before me today, the respondent is asking that his appeal be heard early. I shall address this later.
[4] The preliminary objections of Mr. Charkaoui dismissed, the hearing on the reasonableness of the certificate was to be held on September 20, 21 and 22, 2004. By order dated September 15, 2004, it was adjourned to next November 22, 23, 24, 25 and 26. Then, if necessary, the hearing on the legality of the decision on the moving party's application for protection was scheduled for December 13, 14, 15, 16 and 17.
[5] The primary objective of the motion before me relates to the hearings scheduled for this November and December. The moving party is asking this Court to issue an order temporarily staying the hearings until the appeal on the merits of the decision by the Federal Court dated December 5 is heard and decided.
[6] In support of his motion, the moving party submits that his appeal could be of no effect or unnecessary if a temporary stay of the Federal Court hearings is not ordered. He will suffer irreparable harm, he says, and, if we weigh the inconveniences resulting from the absence of a stay against those resulting from a temporary stay, the balance tips in his favour.
Does the Court of Appeal have jurisdiction in this case to order a temporary stay of the Federal Court hearings until there has been a judgment by the Court of Appeal in the matter before it?
[7] The respondents submit that the Court of Appeal does not have jurisdiction to grant the stay because the order scheduling the hearing dates was not appealed. They rely on rule 398 of the Federal Court Rules, 1998, which I reproduce but which, in essence, states that it is the Court that made the order that can stay it if the order has not been appealed:
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398. (1) Stay of order - On the motion of a person against whom an order has been made,
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398. (1) Sursis d'exécution - Sur requête d'une personne contre laquelle une ordonnance a été rendue :
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(a) where the order has not been appealed, the division of the Court that made the order may order that it be stayed; or
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a) dans le cas où l'ordonnance n'a pas été portée en appel, la section de la Cour qui a rendu l'ordonnance peut surseoir à l'ordonnance;
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(b) where a notice of appeal of the order has been issued, a judge of the division of the Court that is to hear the appeal may order that it be stayed.
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b) dans le cas où un avis d'appel a été délivré, seul un juge de la section de la Cour saisie de l'appel peut surseoir à l'ordonnance.
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[8] Paragraph 50(1)(b) of the Act which governs us, the Federal Courts Act, gives the Court of Appeal the discretion to stay proceedings in any cause or matter where for any other reason it is in the interest of justice. With respect, I do not think that rule 398, which establishes the procedure to follow for stays, strips the Federal Court of Appeal of its power to stay a proceeding if it is in the interest of justice. If an appeal before it were to be rendered unnecessary, futile or illusory as the result of an ongoing proceeding before a federal tribunal or the Federal Court, I believe beyond the shadow of a doubt that our Court can order a stay of that proceeding to ensure that its appellate jurisdiction and process are not impeded to the detriment of the parties to the appeal, especially the appellant.
[9] Recently, in Genex Communications Inc. v. Attorney General of Canada and the Canadian Radio-television and Telecommunications Commission, 2004 FCA 279, our Court, in a unanimous judgment, relied upon its plenary jurisdiction to take interim measures to prevent a party's appeal from becoming illusory. At paragraph 3 of the decision, it states:
In view of the breadth of the Federal Court's jurisdiction and its general administrative jurisdiction over federal administrative tribunals (Canada (HRC) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, paragraphs 35 and 36), this Court has jurisdiction to grant interim relief so that, in exercising its function of reviewing administrative tribunals and agencies, a party's appeal will not be made illusory.
[10] Although this decision was rendered in the context of the superintending power over administrative tribunals, the principle which emerges from this decision, I would respectfully suggest, goes beyond this context and meets the generality and scope of the discretionary power conferred by paragraph 50(1)(b) of the Federal Courts Act: just as the Court of Appeal can take measures to review an abuse of its process, it can also take measures to prevent the legitimate exercise of its jurisdiction from being impeded when the interest if justice so requires. The issue in this case therefore becomes: have the well-known conditions for exercising that jurisdiction been fulfilled?
Does the appeal raise a serious issue?
[11] In my view, this first test, or this first condition, is not problematic. The Act is new. The debate bears on issues of freedom and security - individual as well as national - which directly involve the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms. The appeal undoubtedly raises a serious issue.
Will the lack of a temporary stay during the appeal cause irreparable harm to the moving party?
[12] On this point, the moving party basically cites three sources of harm that he describes as irreparable: his ongoing detention, the damage to his reputation resulting from a process which does not enable him to fully and effectively assert his grounds of defence and which appears to be institutionally biased, as well as the risk of his appeal becoming unnecessary.
[13] I immediately preclude the second source cited: even if it were a source of harm, it is not irreparable. Damage to reputation can be compensated monetarily. If the process followed by the Federal Court which led to the decision on the reasonableness of the certificate were to be quashed by our Court on the grounds that it was unconstitutional, I find it difficult to see how that decision could stand if its foundation were to crumble. Finally, in my view there is no evidence of an appearance of institutional bias at this stage, beyond the allegations to that effect.
[14] With respect to the detention, I find the argument paradoxical since staying the hearings on the reasonableness of the certificate could considerably prolong the moving party's detention if the judgment appealed is confirmed and if there is an application for leave to appeal to the Supreme Court of Canada. On the other hand, the hearings could lead to the certificate being declared invalid, thereby ending the detention and the harm resulting from that source. I would add that, like the designated judge of the Federal Court, I am sensitive to the fact that the moving party is in detention and that section 78 of the Act requires that proceedings in review of the reasonableness of certificates proceed expeditiously. That is stated legislative intent which militates against a stay, unless of course it is necessary.
[15] It is true that the appeal of the decision dated December 5, 2004, could become unnecessary if the hearings scheduled in Federal Court lead to the certificate being declared invalid for unreasonableness. But what harm then would that cause the moving party?
[16] Conversely, the appeal takes all its significance and usefulness if the certificate is upheld. Does it thereby become ineffective? Far from it, because the judgment on the reasonableness is final and not subject to appeal. So the appeal on the preliminary issues relating to the constitutionality of the process surrounding the arrest, detention and national security, as mentioned earlier, if successful, could invalidate the process followed and hence the final judgment not subject to appeal declaring that the certificate issued is reasonable.
[17] Finally, the harm alleged by the moving party and the necessity to stay the hearings and proceedings before the Federal Court are, for all practical purposes, eliminated since our Court is ready to hear the appeal on dates prior to the hearings before the Federal Court.
[18] To summarize, I am not persuaded that the harm, if there is any in the circumstances, is an irreparable harm warranting an order to stay.
The balance of convenience
[19] Considering my finding on the second test, I need not address the issue of the balance of convenience. The moving party is requesting that the appeal be given an early hearing and the date finally selected by the moving party, among the proposed dates of November 8, 17 and 29 well as December 6, 7, 8 and 9, precede those hearing dates scheduled in Federal Court. The appeal record is ready, the written arguments have been filed and that leaves only the day for the oral hearing. The constitutional arguments raised are the same as those argued in Federal Court. There is therefore no significant inconvenience in having the two proceedings - the appeal in the Court of Appeal and the review of the certificate in the Federal Court - take place sequentially, even if they are close together in time. As already mentioned, the interest of justice - including the interest of a moving party in detention to having a review of the lawfulness of his arrest, his detention and his departure order - demands that the administration of procedures be somewhat expeditious, if not assuredly expeditious. I cannot, by staying proceedings in Federal Court, thwart an efficient and effective coordination of two series of proceedings before two different courts made in the best interest of the administration of justice.
[20] For these reasons, the motion for an early hearing date will be allowed and the order herein will set the date for the hearing of the appeal on November 8, 2004.
[21] The motion for a stay of proceedings and hearings before the designated judge of the Federal Court will be dismissed.
[22] Under the circumstances, no costs will be granted to or awarded against either party.
"Gilles Létourneau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-603-03
STYLE OF CAUSE: ADIL CHARKAOUI v. MINISTER OF CITIZENSHIP AND IMMIGRATION et al.
WRITTEN MOTION DECIDED BY TELECONFERENCE
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE LÉTOURNEAU
DATE OF REASONS: September 24, 2004
WRITTEN REPRESENTATIONS BY:
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Johanne Doyon
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FOR THE APPELLANT
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Daniel Latulippe
Daniel Roussy
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
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Doyon Morin
6337 Saint-Denis Street
Montréal, Quebec H2S 2R8
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FOR THE APPELLANT
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Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario
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FOR THE RESPONDENTS
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