Date:
20041006
Docket:
DES‑3‑03
Citation:
2004 FC 1377
Ottawa, Ontario, the 6th day of October
2004
Present: THE HONOURABLE MR.
JUSTICE SIMON NOËL
BETWEEN:
IN
RE a certificate pursuant to subsection 77(1)
of
the Immigration and Refugee Protection Act,
signed
by the Minister of Citizenship and Immigration
and
the Solicitor General of Canada
S.C.
2001, c. 27 (the I.R.P.A.);
IN
RE the filing of this certificate in the
Federal
Court of Canada pursuant to
subsection 77(1)
and sections 78 and 80
of
the I.R.P.A.
IN
RE the warrant for the arrest and
detention
and review of the reasons justifying
continued
detention pursuant to subsections 82(1)
and
83(1) and (3) of the I.R.P.A.
AND
IN RE the motion to postpone the hearing
scheduled
for November 22, 23, 24, 25 and 26, 2004
and
December 13, 14, 15, 16 and 17, 2004
by
Mr. Adil Charkaoui (Mr. Charkaoui)
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is
another application to postpone dates set by order on
September 15, 2004, both for scheduling and for a hearing on the
reasonableness of the certificate and legality of the Minister’s decision. The
hearing on the reasonableness of the certificate was scheduled for
five days in the week of November 22, 2004, and that regarding
the legality of the Minister’s decision for five days in the week of
December 13, 2004. A schedule was prepared accordingly.
[2] Following
that order Mr. Charkaoui asked the Federal Court of Appeal to temporarily
stay the aforesaid hearing, the reason being the hearing on appeal of the
decision on December 5, 2003, dismissing the arguments dealing with
the unconstitutionality of sections 33 and 77 to 85 of the I.R.P.A.
[3] The
Federal Court of Appeal (in a decision dated September 24, 2004, Adil Charkaoui v.
M.C.I. and S.G.C., A‑603‑03 F.C.A.) dismissed the application
for a temporary stay. Essentially, Létourneau J.A. concluded that although
the appeal raised a serious question (the Act is new and the argument concerned
questions of freedom and security, both individual and national), there was no
irreparable harm or major hardship involved in having both the 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.
[4] The
order of September 15, 2004, including the reasons dated
September 21, 2004, was appealed by Mr. Charkaoui on
September 27, 2004 (case A‑502‑04).
[5] Since
the Federal Court of Appeal hearing on September 24, 2004,
Mr. Charkaoui’s application for legal aid was accepted and
Dominique Larochelle, permanent legal aid attorney, was assigned [translation] “with possible additional
support from another permanent legal aid colleague in Montréal” (see affidavit
of Jean Fauteux, Acting Director for the immigration legal aid office in
Montréal, dated September 29, 2004, at paragraph 11).
Accordingly, Mr. Charkaoui, in addition to Ms. Larochelle and
possibly another legal aid attorney to be identified, has use of the services
of Johanne Doyon. The latter acted for Mr. Charkaoui from the start
of the proceedings and is the solicitor of record under the Court Rules.
[6] Mr. Charkaoui
sought this new postponement as the recent assignment of Ms. Larochelle
was too recent and, in view of the scope of the case and the work to be done,
did not allow for an adequate defence of Mr. Charkaoui.
[7] Since
the start of the proceedings the Court has tried unsuccessfully to give
Mr. Charkaoui “an opportunity to be heard regarding [his] inadmissibility”
(see section 78 of the I.R.P.A.) and the reasonableness of the certificate
(see subsections 80(1) and (2) of the I.R.P.A.). The Court has already said
that it was concerned by the length of Mr. Charkaoui’s detention (over
16 months), knowing that a finding that the certificate was not reasonable
would end the matter overall and the fact that the Court must proceed
expeditiously (see paragraph 78(c) I.R.P.A.). This concern was
discussed in the reasons dated September 21, 2004, in support of the
order of September 15, 2004.
[8] In the
Federal Court of Appeal judgment mentioned in paragraph 2 above,
Létourneau J.A. supported this concern, at paragraphs 14 and 19, as
follows:
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 . . . 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.
[9] At the
hearing held by teleconferencing call on September 7, 2004, in which
Mr. Charkaoui sought a postponement of the hearing scheduled for
September 20, 21 and 22, 2004, to examine the reasonableness of
the certificate, the Court indicated its concern to the parties again. The
application to postpone was granted but new hearing dates were chosen. At some
point, the parties must accept that the reasonableness of the certificate has
to be dealt with. That is what Parliament intends and it is in the interests of
the parties and of justice for the case to proceed in accordance with the rules
set out in the Act.
[10] The
tribunal considers that the application for postponement is not justified. The
order of September 15, 2004, determining the hearing dates has been
known since that date. At that time, Ms. Doyon was the solicitor of record.
Since that time, we learn that Ms. Larochelle is on the record, with
possibly another legal aid counsel. The Federal Court of Appeal has dealt with
the situation and chosen November 8, 2004, as the date to hear the
appeal from the decision of December 5, 2003, knowing the hearing
dates in the Federal Court scheduled for November and December 2004 and
approving the fact that the proceedings should go forward sequentially “even if
they are close together in time”. The tribunal has a duty to proceed expeditiously,
and over 16 months have elapsed since the start of the proceedings, with
Mr. Charkaoui detained since that time. Further, the reasonableness or
otherwise of the certificate is at the heart of these proceedings and affects
the next stages to be followed, if necessary. It is important that the hearing
take place on the dates suggested. The parties have, since
September 15, 2004, had the time needed to prepare in accordance with
the schedule given.
[11] Additionally,
the Court has already suggested it is available to hear motions which could
facilitate the submission of the evidence. It repeats that offer.
FOR THESE
REASONS, THE COURT ORDERS THAT:
- The motion to postpone the
hearing scheduled for November 22, 23, 24, 25 and 26 and December 13,
14, 15, 16 and 17, 2004, is dismissed.
|
|
“Simon
Noël”
Judge
|
Certified true
translation
Jacques Deschênes,
LLB
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: DES‑3‑03
STYLE OF CAUSE: IN
RE A CERTIFICATE PURSUANT TO SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE
PROTECTION ACT
AND ADIL
CHARKAOUI
DATE OF HEARING: WRITTEN
MOTION HEARD WITHOUT APPEARANCE BY PARTIES
REASONS BY: THE
HONOURABLE MR. JUSTICE SIMON NOËL
DATED: OCTOBER
6, 2004
WRITTEN SUBMISSIONS BY:
DANIEL ROUSSY FOR
THE SOLICITOR GENERAL OF
and CANADA
LUC CADIEUX
DANIEL LATULIPPE FOR
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
JOHANNE DOYON FOR
ADIL CHARKAOUI
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE
SOLICITOR GENERAL OF
DEPUTY ATTORNEY CANADA
AND MINISTER OF
GENERAL OF CANADA CITIZENSHIP
AND IMMIGRATION
DOYON, MORIN FOR
ADIL CHARKAOUI
MONTRÉAL, QUEBEC
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