Dockets: A-155-17
A-156-17
Citation:
2017 FCA 144
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CORAM:
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STRATAS J.A.
WEBB J.A.
RENNIE J.A.
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BETWEEN:
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MOHAMED ZEKI
MAHJOUB
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Appellant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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REASONS
FOR ORDER
STRATAS J.A.
[1]
The respondent Ministers have moved under Rule
74 to remove the notices of appeal in two appeal files and to close the files.
They allege that this Court lacks the jurisdiction to determine the appeals.
[2]
For the reasons below, I agree with the
Ministers and would grant the motions.
A.
Background
[3]
Mr. Mahjoub is a named person in a security
certificate issued against him under section 77 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. As a result of the security
certificate, he was arrested and detained. Later, he was released on
conditions.
[4]
The Federal Court periodically reviews these
conditions.
[5]
This matter arises from one such review by the
Federal Court (per Brown J.): 2016 FC 808. Mr. Mahjoub appeals from
this. He has also appealed a decision of the Federal Court (per Brown
J.) concerning proposed questions for certification: 2017 FC 334.
[6]
Thus, there are two appeal files before the
Court, file A-155-17 and file A-156-17. A copy of these reasons shall be filed
in both of these files.
[7]
The precise mechanism used by the Ministers to
terminate these appeals is set out in Rule 74. In situations where this Court
lacks jurisdiction over an appeal, Rule 74 allows this Court to order that the
notice of appeal be removed from the court file and the file closed.
[8]
The relief the Ministers seek on these motions can
be granted only by a three person panel of this Court: Rock-St Laurent v.
Canada (Citizenship and Immigration), 2012 FCA 192, 434 N.R. 144. Thus, a
three person panel of this Court has been constituted to determine the motions.
[9]
The Ministers say that Rule 74 applies because
this Court has no jurisdiction to determine the appeals. They invoke section
82.3 of the Immigration and Refugee Protection Act. Section 82.3
provides that appeals to this Court from detention review decisions may only be
brought if the Federal Court has certified a “serious
question of general importance.”
[10]
In this case, after receiving submissions, the
Federal Court decided that there was no serious question of general importance
for this Court to consider. It refused to certify a question.
B.
Analysis
[11]
Given that the Federal Court did not certify a
serious question of general importance, the bar in section 82.3 applies unless
we are persuaded that the appeal falls within one of the limited, narrow
exceptions recognized in the case law.
[12]
The issue in these motions is whether any of
these exceptions apply. Mr. Mahjoub has not persuaded me that any apply.
– I –
[13]
Mr. Mahjoub submits that the Federal Court
failed to exercise its jurisdiction. This Court has recognized that the failure
of the Federal Court to exercise its jurisdiction can be appealed in the face
of a statutory bar under the Act: Canada (Solicitor General) v.
Subhaschandran, 2005 FCA 27, [2005] 3 F.C.R. 255 at para. 13. But this is not
a failure to exercise jurisdiction. Rather, Mr. Mahjoub takes issue with how
the Federal Court exercised its jurisdiction.
[14]
Further, Mr. Mahjoub submits that the Federal
Court failed to consider constitutional questions placed before it. This is not
correct.
[15]
First, the Federal Court stated that “[i]nstead of arguing these constitutional questions at the
time of the Motion, [Mr. Mahjoub] chose, with permission, to argue them at some
later time”: 2017 FC 334 at para. 1.
[16]
Second, at paras. 4-5 of 2017 FC 334, the
Federal Court noted that Mr. Mahjoub “proposes 37
specifically numbered questions to certify comprised of 19 questions to certify
plus 18 constitutional questions” and “there is
substantial duplication and overlap between the many questions propounded.”
As a result the Federal Court grouped a number of them and dealt with them.
[17]
The substance of the matter must be examined.
Were the court to do otherwise, counsel would be encouraged to play a game of
raising tens of closely related, confusingly stated, overlapping questions in
the hope that the Federal Court might, in a purely technical sense, miss one.
In reviewing the substance of what the Federal Court did, I see no failure on
its part to consider the questions placed before it.
– II –
[18]
Mr. Mahjoub submits that the matters the Federal
Court dealt with were “jurisdictional.” He adds
that matters of “jurisdiction” are one of the
recognized exceptions to the statutory bars under the Immigration and
Refugee Protection Act: see, e.g., Sellathurai v. Canada (Public
Safety and Emergency Preparedness), 2011 FCA 223, [2012] 2 F.C.R. 243.
[19]
Some matters, like a credible allegation of bias
against the judge who decided the matter in the Federal Court, can get around
the statutory bars in the Act. This is because they go to very fundamental
matters—truly exceptional matters that strike right at the rule of law: Narvey v. Canada (Minister of Citizenship and
Immigration), (1999) 235 N.R.
305 (F.C.A.); Horne v. Canada (Citizenship and Immigration), 2010
FCA 337, 414 N.R. 97 at para. 4; Re
Zündel, 2004 FCA 394.
Some cases use the word “jurisdictional” to
describe these sorts of matters.
[20]
But caution must be exercised in bandying about
the word “jurisdictional.” The Supreme Court has
repeatedly warned against “brand[ing] as
jurisdictional, and therefore subject to broader curial review, that which may
be doubtfully so”: Smith v. Alliance Pipeline Ltd., 2011 SCC 7,
[2011] 1 S.C.R. 160, at para. 36; Canadian Union of Public Employees, Local
963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 at p. 233, cited in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 35.
[21]
This is consistent with many cases decided by
this Court. Alleged mere errors of law—even important ones—do not get around
the statutory bars against appeals under the Act, such as the one in issue
here, section 82.3 of the Act: Canada (Citizenship and Immigration) v.
Goodman, 2016 FCA 126 at paras. 5-9; Mahjoub v. Canada (Citizenship and
Immigration), 2011 FCA 294 at para. 12. In substance, in his appeals, Mr.
Mahjoub alleges that the Federal Court erred in law, nothing more. The bar in
section 82.3 of the Act applies.
– III –
[22]
Mr. Mahjoub emphasizes the constitutional nature
of the rulings of the Federal Court that he wishes to appeal.
[23]
This Court has never held that the Federal
Court’s rejection of constitutional arguments can be appealed in the face of
the bar against appeals. In fact, as this Court noted in Wong v. Canada
(Citizenship and Immigration), 2016 FCA 229 at para. 15, there are many cases
confirming that the bar against appeals applies:
The appellants submit that para.
72(2)(e) [another bar
against appeals in the Immigration and Refugee Protection Act] does not
apply where the appeal involves “constitutional questions” or matters concerning
“the Federal Court’s role in the conduct of judicial review.” No authority
supports that proposition. In fact, this Court’s decision in Chung v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 31 is against it. The presence in an appeal of constitutional
questions or issues relating to this Court’s role on judicial review is not a
recognized exception to the bars against appeals in the Immigration and
Refugee Protection Act: see, e.g., Mahjoub [v.
Canada (Citizenship and Immigration), 2011 FCA 294]; Es-Sayyid v. Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FCA 59,
[2013] 4 F.C.R. 3.
– IV –
[24]
Finally, Mr. Mahjoub raises the
constitutionality of the requirement for a certified question before an appeal
can be brought. He does not mention any of the jurisprudence in which such an
argument has been rejected: see, most recently, Wong, above at
para. 16; Krishnapillai v. Canada, 2001 FCA 378, [2002] 3 F.C. 74; Huntley
v. Canada (Citizenship and Immigration), 2011 FCA 273, 426 N.R. 152 at
para. 14; Huynh v. Canada, [1996] 2 F.C. 976, 197 N.R. 62. The certified
question requirement is constitutional.
C.
Conclusion
[25]
In substance, these appeals are nothing more
than disagreements with the merits of the Federal Court’s two decisions. The Federal
Court did not consider that there was a serious question of general importance
worth placing before this Court for its consideration.
[26]
Under Parliament’s law, in the absence of a
certified question of general importance, the Federal Court’s decisions are final:
these appeals are barred by section 82.3 of the Immigration and Refugee Protection
Act.
D.
Proposed disposition
[27]
Thus, under Rule 74, I would grant the motions
and order that the notices of appeal be removed from the court files and the
files closed.
“David Stratas”
“I agree
Wyman W. Webb J.A.”
“I agree
Donald J. Rennie J.A.”
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