Charkaoui, Re, 2004 FC 900

Date : 20040623

Docket: DES-3-03

Citation: 2004 FC 900

Ottawa, Ontario, the 23^rd day of June 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,

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 the review of the reasons justifying continued

detention pursuant to subsections 82(1),

and 83(1) and (3) of the I.R.P.A.;

IN RE an application for interim costs by

M. Adil Charkaoui

AND IN RE

Adil Charkaoui

                                            REASONS FOR ORDER AND ORDER

[1]                This is an interim costs application for a sum of money to pay the fees and disbursements amounting to $19,250, plus GST and QST, that will have to be incurred to prepare, draft and submit a motion seeking:

-           a declaratory judgment finding that there was an abuse of process and infringement of the constitutional rights of Adil Charkaoui (Mr. Charkaoui) by the Minister in processing his protection application given that, since August 21, 2003, the Ministers have had the pre-removal risk assessment report (PRRA) in their possession and did not release it to Mr. Charkaoui until April 2, 2004; the said report concluded there was a probability of torture, threats to life and being subject to cruel and unusual treatment or punishment if he returned to Morocco;

-           a judgment remedying the prejudice sustained by Mr. Charkaoui and ruling that his protection application is accepted, pursuant to the PRRA report dated August 21, 2003 concluding that there was a probability of torture, threats to life and being subject to cruel and unusual treatment or punishment if Mr. Charkaoui returned to Morocco;

-           a judgment reserving Mr. Charkaoui's other remedies, and alternatively seeking:

-            a judgment finding to be unconstitutional and of no force or effect the provisions in sections 95(1) in fine, 112(3)(d), 113(b), (c) and (d) and 115(2) of the I.R.P.A. in association with sections 77(2), 101(1)(f) and 104 of the I.R.P.A., as well as sections 167 to 172 of the Immigration and Refugee Protection Regulations (I.R.P.R.); and

-            a judgment finding that Mr. Charkaoui is a "protected person" under sections 96 and 97 of the I.R.P.A. and pursuant to the PRRA assessment dated August 21, 2003, and a "person protected" from removal to a country where he risks torture pursuant to section 115(1) of the I.R.P.A., with costs on a solicitor-client basis whatever the outcome of the motion.

[2]                For the reasons set out below, the interim costs application is denied as Mr. Charkaoui was unable to show that he met the requirements of that kind of application as established by the Supreme Court of Canada in British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371 (hereinafter Okanagan Indian Band).

OVERVIEW OF CASE

[3]                To place the facts of this case in their context, I will briefly review its developments to date. On May 16, 2003 the Ministers signed a certificate pursuant to subsection 77(1) of the I.R.P.A. stating that Mr. Charkaoui is a person covered by paragraphs 34(1)(c), (d) and (f) of the I.R.P.A., and the said certificate was filed on May 21, 2003. An arrest warrant was accordingly issued and executed against Mr. Charkaoui, which has led to his being detained since May 21, 2003. The Ministers considered that Mr. Charkaoui was a danger to national security, in particular for the following reasons:

-           he is a member of the Al-Quaeda network and has undergone training in one of that network's camps;

-           he is regarded as being a sleeper in the Bin Laden network;

-           the Ministers associate his activities with violence and terrorism, indicating that he is an expert in karate and the martial arts . . .

[4]                Since the start of the proceedings, Mr. Charkaoui has been represented by two lawyers (Johanne Doyon and Julius Grey _ hereinafter counsel) and so far the undersigned has signed more than nine judgments, orders or directions having to do with this matter. For example, this Court has twice made a decision on the review and the continuation of detention of Mr. Charkaoui as provided in section 83 of the I.R.P.A., namely the decision of July 15, 2003, Charkaoui, [2003] F.C. 882 (hereinafter the July 15, 2003 decision), and that of January 23, 2004, Charkaoui, [2004] F.C. 107 (hereinafter the January 23 decision). On December 5, 2003 this Court also ruled in Charkaoui, [2003] F.C. 1419 (hereinafter the December 5, 2003 decision), on the challenge to the constitutional validity of several provisions of the I.R.P.A. which lay down a procedure the purpose of which is to determine whether a permanent resident is a danger to Canadian security or the safety of any person.

[5]                Although the essence of the procedure set out in sections 76 et seq. of the I.R.P.A. is the analysis of the reasonableness of the certificate (see section 80(1) of the I.R.P.A.), the undersigned is still not in a position to do this as, at the request of Mr. Charkaoui's counsel in February 2004 that the matter be stayed on account of the protection application, the proceeding was stayed in this regard as required by section 79(1) of the I.R.P.A.

[6]                In late May 2003 the Ministers had a PRRA notice served on Mr. Charkaoui, who responded in late July. On August 21, 2003 an officer concluded his assessment, indicating that there was a likelihood of torture, threats to life or a risk of cruel or unusual treatment or punishment if Mr. Charkaoui returned to Morocco. This document was forwarded to Mr. Charkaoui over seven months later, accompanied by two other assessments (review of restrictions pursuant to subsection 112(3) of the I.R.P.A. and assessment of restrictions under subparagraph 113(d)(ii) of the I.R.P.A.), which concluded that Mr. Charkaoui represented a danger to Canadian security. These documents were submitted to the Minister's delegate for a decision as to the possibility of Mr. Charkaoui's return to Morocco.

SUBMISSIONS

[7]                Mr. Charkaoui alleges that the delay of over seven months in sending him the report of August 21, 2003 constitutes an abuse of process which has caused him prejudice, prompting him to ask the Court to allow his protection application. Alternatively, he asks the Court to rule the provisions regarding the PRRA, namely sections 95(1)(c) in fine, 112(3)(d), 113(b), (c) and (d) and 115(2) of the I.R.P.A., as well as sections 167 to 172 of the I.R.P.R., to be unconstitutional and of no force or effect.

[8]                In planning the pleadings on such a motion, counsel for Mr. Charkaoui estimated their fees and disbursements at $19,250, and accordingly applied for interim costs. They argue that such an application is reasonable in the circumstances, especially taking into account the unique features of the case and the fact that the conditions laid down by the Supreme Court of Canada in Okanagan Indian Band have been met.

[9]                In his motion record, Mr. Charkaoui informed the Court that he has no income, that his wife is receiving social assistance and that he is eligible for the legal aid program of the province of Quebec. However, he added that legal aid does not give advances for fees or interim costs. Additionally, he notes that his counsel would not accept legal aid retainers, as those do not provide advances for fees and, in the case at bar, the fee scale is insufficient. He mentions that, without his counsel, he cannot appear in court.

[10]            In rebuttal, the Ministers object to such an application as they maintain that costs are awarded to the successful party, and that it is difficult at this time to predict the final outcome of an abuse of process application and a ruling that Mr. Charkaoui is a protected person. Additionally, the Ministers consider that, on the facts of the case at bar, the three conditions set out in Okanagan Indian Band have not been met.

POINT AT ISSUE

[11]            Is Mr. Charkaoui entitled to interim costs to allow his counsel to submit a motion challenging the abuse of process in handling the PRRA application, and accordingly a ruling that Mr. Charkaoui is a "protected person" pursuant to sections 112 et seq. of the I.R.P.A., or alternatively that sections 95(1)(c) in fine, 112(3)(d), 113(b), (c) and (d) and 115(2) of the I.R.P.A. and sections 167 to 172 of the I.R.P.R. are unconstitutional and that accordingly he is a "protected person"?

LAW AND PRECEDENT

[12]            Under section 4 of the Federal Courts Act, S.C. 2002, c. 8, ss. 13-58 (the Act), the Federal Court is a court of equity and the scope of its power to award costs is found in section 400 of the Federal Court Rules (1998) (the Rules).

[13]            Section 4 of the Act states:

[14]            Section 400 of the Rules states:

[15]            The Federal Court's discretionary power to award costs derives from the concept of equity and is formally set out in the Court Rules, which give the Court complete discretion on whether to award costs. (see Okanagan Indian Band, para. 19).

[16]            Costs are usually awarded to the successful party at the end of the judgment. In Okanagan Indian Band, at para. 20, the Supreme Court cites with approval an extract from Re Regional Municipality of Hamilton-Wentworth and Hamilton-Wentworth Save the Valley Committee, Inc., [1985] 51 O.R. (2d) 23. That decision indicates the time costs are awarded and the factors that must be taken into account when costs are being awarded:

(1) They are an award to be made in favour of a successful or deserving litigant, payable by the loser.

(2) Of necessity, the award must await the conclusion of the proceeding, as success or entitlement cannot be determined before that time.

(3) They are payable by way of indemnity for allowable expenses and services incurred relevant to the case or proceeding.

(4) They are not payable for the purpose of assuring participation in the proceedings.

[17]            If a court intends to depart from the factors mentioned above, it must do so with caution. In this regard LeBel J., for the majority, wrote in Okanagan Indian Band at para. 22:

The power to order costs is discretionary, but it is a discretion that must be exercised judicially, and accordingly the ordinary rules of costs should be followed unless the circumstances justify a different approach.

[18]            Taking a hypothetical situation of a departure from the usual approach in awarding costs, LeBel J. in Okanagan Indian Band at para. 40 puts forward three conditions which must all be met for the Court to award interim costs:

With these considerations in mind, I would identify the criteria that must be present to justify an award of interim costs in this kind of case as follows:

(1)           The party seeking interim costs genuinely cannot afford to pay for litigation, and no other realistic option exists for bringing the issues to trial _ in short, the litigation would be unable to proceed if the order were not made.

(2)           The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means.

(3)           The issue raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases.

Once all these conditions are met, the Court through its discretion retains the final choice in determining whether to award interim costs.

CERTAIN SIGNIFICANT FINDINGS

[19]            The instant application for interim costs is more than just a costs application. The amount of over $19,250 reflects counsel's fees and is accompanied by an application for costs on a solicitor-client basis.

[20]            In the case at bar, Mr. Charkaoui filed a legal certificate from the legal aid program of the province of Quebec showing that he is entitled to make use of that program to obtain legal representation. The factual situation in the case at bar thus differs from that which existed in Okanagan Indian Band, where no evidence of access to legal aid was filed and so far as we know does not seem to have been available to the applicant (see for comparison purposes the facts mentioned in British Columbia (Minister of Forests) v. Okanagan Indian Band, [2001] B.C.J. No. 2279, para. 6).

[21]            Mr. Charkaoui did not inform the Court whether a legal aid lawyer or a lawyer in private practice who accepted legal aid retainers was available. However, Mr. Charkaoui wishes to be represented by the lawyers Doyon and Grey, who require payment in advance and a higher fee scale than that paid by the legal aid.

[22]            Although the proceedings are distinct from those at issue in the case at bar, I note for comparison purposes that in immigration law procedure, such as applications for leave, judicial review or appeal arising out of such applications pursuant to the I.R.P.A., the rule is that costs will not be awarded unless for special reasons the Court so orders (see section 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22). Having made those comments, I will proceed in the following paragraphs to analysis and determination.

OKANAGAN INDIAN BANDTEST

[23]            I will undertake analysis of the facts in the case at bar with reference to the three conditions listed by LeBel J. in Okanagan Indian Band, supra.

(A)       The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial _ in short, the litigation would be unable to proceed if the order were not made

[24]            Although the evidence on the ability to pay for the litigation is brief, lacking in detail and different from that presented in Okanagan Indian Band, I note that Mr. Charkaoui and his wife have very little income at their disposal that would allow them to pay the costs of such litigation. At the same time, I have no evidence to explain how Mr. Charkaoui has been able to discharge his obligations to his lawyers for a year. Although that kind of evidence is not essential, it is still important for the evidence presented in such a case to include a financial table which is as complete as possible, showing not only the financial situation of the person concerned but that of his wife and family as well. If there is no possibility of recourse to other means or of access to other financial sources, it is important to say so as it is the person concerned who has the burden of proof in such a motion. Having said that, Mr. Charkaoui states in his affidavit, at para. 19: [TRANSLATION] "I have been detained for over a year, I have no income, no savings and no longer any financial resources".

[25]            However, this first condition is not limited simply to a finding that the person concerned does not have the ability to pay costs, as LeBel J. added that he must have no other source of financing for bringing the issues to trial. In the case at bar, the evidence was that Mr. Charkaoui is eligible for legal aid (according to Mr. Charkaoui's affidavit dated May 20, 2004, para. 19). However, legal aid does not pay fee advances and pays counsel on a scale lower than that of the counsel representing him. Accordingly, a source of financing exists for Mr. Charkaoui but one which his counsel cannot accept for the two reasons mentioned above (according to Mr. Charkaoui's affidavit, paras. 20, 21 and 22).

[26]            Mr. Charkaoui presented no evidence showing that although he is eligible for legal aid no lawyer from the agency, or in private practice if necessary, is available to carry out the instructions so as to bring the issues to trial. From its general knowledge the Court is aware that in the Immigration Division of the Barreau of Montreal there are excellent lawyers, including full-time legal aid lawyers.

[27]            Unless there is evidence to the contrary, I consider that Mr. Charkaoui can make use of the legal aid program of the province of Quebec to secure representation in the motion for abuse of process. Although the case was one in the criminal law, the comments of the Quebec Court of Appeal on the constitutional right to representation by counsel in Québec (Procureur-général) v. R.C. (C.A.), [2003] R.J.Q. 2027, nevertheless seem to be relevant as regards analysis of the Quebec legal aid program:

[TRANSLATION]

Before relying on his constitutional right to be represented by counsel in order to ensure that he has a fair trial, an accused who is eligible for legal aid must exhaust the resources set out in the LAA. To this end, he must seek the services of a full-time legal aid lawyer when he cannot retain the services of a lawyer in private practice. Additionally, if no full-time legal aid lawyer can act and no lawyer in private practice agrees to represent the accused at the scale laid down in the Regulation respecting the Tariff, it will be up to the latter to apply to the Court, which will decide whether there has been a denial of his constitutional right.

[28]            In his memorandum, Mr. Charkaoui implicitly argues that he has a right not only to representation, but also to the counsel of his choice. In my opinion, we are not dealing here with an absolute and general constitutional right, but with a limited right the purpose of which is to ensure a fair trial and which must be analysed in terms of the unique features of the case. In the case at bar, in view of the financial situation of Mr. Charkaoui and his wife, the provincial legal system is offering him a source of financing through the legal aid program.

[29]            In view of the evidence as submitted, I feel that the first condition has not been met. Since the three conditions listed by LeBel J. in Okanagan Indian Band are cumulative, and therefore it is essential for them all to be met if the interim costs are to be justified, my conclusion on the first condition would suffice to dispose of the motion at bar. However, so as to fully satisfy the parties' expectations, I intend to deal briefly wih the other conditions, while remarking that if ever the legal aid program does not allow Mr. Charkaoui to obtain the services of a full-time legal lawyer or a lawyer in private practice who accepts the scale, at such a time the matter may be re-examined based on the three conditions in Okanagan Indian Band.

(B)       The claim to be adjudicated is prima facie meritorious: that is, the claim appears to be at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means

[30]            This condition has two parts. The first concerns the level of interest attaching to the matters raised by the motion, and the second the interests of justice in ensuring that there is good reason to make the motion, and that it should be made despite Mr. Charkaoui's financial situation.

[31]            I have no hesitation in concluding that the motion for abuse of process prima facie raises questions of sufficient merit for it to be made. On the other hand, for the reasons mentioned in analysing the first condition, so far as we know the legal aid program is available to Mr. Charkaoui and the motion for abuse of process may be made in the interests of justice. I therefore consider that the second condition has not been met.

(C)       The issues raised transcend the individual interests of the particular litigant, are of public importance and have not been resolved in previous cases

[32]            There are three parts to this third condition: the issues transcend the individual interests of the litigants, they are of public importance and they have not been resolved in previous cases.

[33]            In Okanagan Indian Band (para. 38), LeBel J. considered that this condition requires that the issues serve the public interest:

In cases of this nature, as I have indicated above, the more usual purposes of costs awards are often superseded by other policy objectives, notably that of ensuring that ordinary citizens will have access to the courts to determine their constitutional rights and other issues of broad social significance. Furthermore, it is often inherent in the nature of cases of this kind that the issues to be determined are of significance not only to the parties but to the broader community, and as a result the public interest is served by a proper resolution of those issues.

[34]            It will be recalled that the motion for abuse of process is based on the fact that the PRRA analysis of August 21, 2003 was released over seven months later, namely on April 2, 2004, and accordingly asks that Mr. Charkaoui be declared a "protected person", and alternatively that sections 95(1)(c) in fine, 112(3)(d), 113(b), (c) and (d) and 115(2) of the I.R.P.A. and sections 167 to 172 of the I.R.P.R. be found unconstitutional, and that Mr. Charkaoui be declared to be a "protected person" accordingly.

[35]            Counsel for Mr. Charkaoui did not clarify the arguments on the motion, except to make general statements. Additionally, I note that in a case concerning a certificate issued under the old Immigration Act, R.S.C. 1985, c. I-2, involving Mahamoud Jaballah, [2003] F.C.T.D. 640, MacKay J. dealt with a situation that may be likened to the one at bar. In that case the Minister delayed releasing a final decision on the PRRA application, without giving an explanation (over ten months from the initial application). The Court concluded there had been an abuse of process and ordered the Minister to pay costs on a solicitor-client basis. In the case at bar, the delay in release was not the Minister's decision but rather the PRRA analysis, and the remedies sought are not the same. Further, I feel that the constitutional claim regarding sections 95(1)(c) in fine, 112(3)(d), 113(b), (c) and (d) and 115(2) of the I.R.P.A. and sections 167 to 172 of the I.R.P.R. has not to date been dealt with by a court.

[36]            In Okanagan Indian Band, at para. 46, LeBel J. described the situation of fact which was particular to the Band, and stated that when the awarding of costs is at issue, the circumstances have to be extreme:

The issues sought to be raised at the trial are of a profound importance to the people of British Columbia, both aboriginal and non-aboriginal, and their determination would be a major step towards settling the many unresolved problems in the Crown-aboriginal relationship in that province. In short, the circumstances of this case are indeed special, even extreme.

[37]            Although the arguments underlying the motion for abuse of process are limited only to general statements, I consider that the issues raised are important. However, as briefly described, I also feel that they are not special or extreme. Further, I do not think the circumstances existing in this case are special enough to persuade me that the issues raised are within "the narrow class of cases where this extraordinary exercise of [the] powers is appropriate" (see Okanagan Indian Band, para. 36). The requirement that the issues raised by the motion be extreme puts the threshold at a very high level, and although the facts in the case at bar are undoubtedly of significant interest, that does not make them extreme.

[38]            Before concluding, I should mention that hearing an application for interim costs in light of Okanagan Indian Band is not a simple matter, especially when we consider that it concerns the exercise of a discretion which involves, among other factors, prejudging the issues raised. Certainly, one is asked to proceed with "particular caution", but it is still an exercise which places the Court in a difficult and unusual situation. Having said that, I have carried out this delicate task with the interests of the parties and of the proper administration of justice in mind.

                                               ORDER

FOR THESE REASONS:

-           The application is dismissed.

                                                                                          Simon Noël                      

                                                                                                   Judge                           

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                            DES-3-03

STYLE OF CAUSE:                            MCI v. ADIL CHARKAOUI

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        June 1, 2004

REASONS:                                          THE HONOURABLE MR. JUSTICE SIMON NOËL

DATED:                                               June 23, 2004

APPEARANCES:

Johanne Doyon                                       FOR THE APPLICANT

Julius Grey

Luc Cadieux                                           FOR THE RESPONDENT

Daniel Latulippe

SOLICITORS OF RECORD:

Doyon, Morin                                         FOR THE APPLICANT

Montréal, Quebec

Julius Grey                                             FOR THE RESPONDENT

Montréal, Québec

Morris Rosenberg                                   FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario