Date: 20040921
Docket: DES-3-03
Citation: 2004 FC 1290
Ottawa, Ontario, the 21st day of September 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN THE MATTER OF a
certificate pursuant to subsection 77(1) of the
Immigration and Refugee Protection Act,
signed by the Minister of Immigration and the Solicitor
General of Canada (the Ministers)
S.C. 2001, c. 27 (the IRPA);
IN THE MATTER OF the filing
of this certificate in the Federal Court of Canada
pursuant to subsection 77(1) and sections 78
and 80 of the IRPA;
IN THE MATTER OF the warrant for
the arrest and detention as well as the review
of the reasons justifying continued detention pursuant to
subsections 82(1) and 83(1) and 83(3) of the IRPA
AND IN THE MATTER OF
the motion for postponement of the hearing
scheduled for September 20, 21 and 22, 2004,
by Adil Charkaoui (Mr. Charkaoui)
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is a motion for postponement of the hearing of September 20, 21 and 22, 2004, by Mr. Adil Charkaoui (Mr. Charkaoui) scheduled since May 17, 2004. Further, Mr. Charkaoui is asking that the next hearing be limited to reviewing the validity of the decision by the Minister's delegate regarding the protection provided for under subsection 112(1) of the Act (the Minister's report) and that this hearing not include the review of the reasonableness of the certificate. Although the Court had suggested setting aside two weeks to review the reasonableness of the certificate and the Minister's report, Mr. Charkaoui is asking that a single week be set aside and he is asking for costs.
[2] There are many reasons for the motion for postponement, but for the purposes of this decision, the Court accepts one reason as the basis for granting it. The Minister's report was communicated on August 17, 2004, with an addenda on August 22, 2004. Mr. Charkaoui and his counsel devoted a great deal of time and energy to preparing the submissions for the purposes of that report. In short, and with the Ministers' agreement, the Court considers that the hearing of September 2004 is too close and - taking into account the date that the Minister's report was communicated - must be cancelled. The Court wants to give the parties a reasonable period of time to prepare for the work to come.
[3] On that point, the Court gives Mr. Charkaoui the opportunity to be heard on the reasonableness of the certificate and then on the lawfulness of the Minister's report and for that purpose, the weeks of November 22 and December 13, 2004, will be set aside. Those weeks were chosen during a conference call between the parties and myself on September 7, 2004. They were accepted by counsel with the exception of Mr. Cadieux (counsel for one of the Ministers) who said that every effort would be made so that it would all be done within the two weeks.
[4] Relying on Canada (Minister of Citizenship and Immigration) v. Jaballah, [2004] F.C.A. 257 (Jaballah), dated July 13, 2004, Mr. Charkaoui argues that the Court must proceed to examine the lawfulness of the Minister's report and make a determination on that matter before giving him the opportunity to be heard on the reasonableness of the certificate. Mr. Charkaoui refers me to paragraph 29 of that decision:
[29] As Jaballah's counsel pointed out in oral argument, this interpretation of subsections 79(2) and 80(1) is supported by the procedure in subsection 80(2). Under subsection 80(2), if the judge finds that a protection decision is not lawfully made, the proceedings in respect of the security certificate are to be suspended until the MCI makes a new decision on the motion for protection. In other words, once an motion for protection is made, the designated judge cannot decide the reasonableness of the security certificate until he determines that the MCI has made a lawful protection decision.
[5] The Ministers do not interpret the Federal Court of Appeal's decision in Jaballah, supra, in the same way. According to them, at paragraph 16 and its sub-paragraph 7, Rothstein J.A., on behalf of the Court, citing with approval the designated judge, stated that when the report by the Minister's delegate has been communicated, the Court can resume the review of the reasonableness of the certificate (after the review of the reasonableness of the certificate has been suspended (see subsection 79(1) of the Act)):
[16] The procedure required by IRPA is, in part, set out in an October 8, 2002, decision of the designated judge, [2003] 3 F.C. 85 at paragraph 27. I agree with his analysis and I adopt it in my analysis of the statutory scheme. . . .
(7) Pursuant to subsection 79(2) of IRPA, once the application for protection has been decided, the MCI shall give notice of that decision to the individual and the designated judge. The judge shall then resume the security certificate proceedings and review the lawfulness of the MCI's protection decision as well as the reasonableness of the security certificate.
[6] A review of sections 79 and 80 of the Act and their sub-sections leads me to observe that determining the reasonableness or unreasonableness of the certificate is at the heart of Section 9 of the Act. Without this certificate, Section 9 has no reason for being and there is absolutely no possible justification for an arrest and a detention as well as an application for protection. A determination sanctioning the reasonableness of the certificate has a number of consequences such as inadmissibility and the assessment of the lawfulness of the Minister's report if so requested (see section 81 of the Act). Furthermore, if the certificate is not reasonable, there is no inadmissibility, the permanent resident is released (if he had been arrested and kept in detention) and there would be no need to hold a hearing on the lawfulness of the Minister's report.
[7] Therefore, the Court considers it logical to proceed first with the review of the reasonableness of the certificate then, as the case may be, if necessary, to the review of the lawfulness of the Minister's report and not the other way around. Why spend time and energy reviewing the Minister's report in the first place if there is a possibility that the certificate is not accepted as being reasonable?
[8] On this point, I rely on the words of Rothstein J.A. in Jaballah, supra, when he writes at paragraph 28:
. . . Under subsection 79(2), the resumed proceedings must involve consideration of both the certificate and the protection decision. Under subsection 80(1), there are two determinations to be made by the designated judge: (1) whether the certificate is reasonable; and (2) whether the protection decision is lawfully made.
[9] It is true that paragraph 29 in Jaballah, cited above, could lead to confusion but it is the Court's opinion that the confusion arises from the fact that Rothstein J.A. was addressing a specific factual situation.
[10] As further support regarding the steps to take when the suspension is granted and when the Minister's report has been communicated, the Court refers to Re: Harkat [2003] 4 F.C. 1020 (F.C.) per my colleague Dawson J. when she writes at paragraph 8:
With respect to an application for protection, on the request of the Minister or a foreign national named in the certificate, the judge designated to hear the certificate proceedings (designated judge) shall, pursuant to subsection 79(1) of the Act, suspend the proceeding with respect to the reasonableness of the certificate in order to allow the Minister to reach his or her decision with respect to the application for protection. When the Minister has reached that decision, the Minister is required to give notice of the decision to the foreign national and to the designated judge, at which time the judge shall resume the certificate proceedings. In addition to ruling on the reasonableness of the certificate, the judge is then also required to review the lawfulness of the decision of the Minister on the application for protection. Such review is to be done on the basis of the grounds for judicial review listed in subsection 18.1(4) of the Federal Court Act [R.S.C., 1985, c. F-7 (as enacted by S.C. 1990, c. 8, s. 5)]. See: subsection 79(2) of the Act.
[11] Bearing in mind the Court's duty to proceed informally and expeditiously (see paragraph 78(c) of the Act), as noted by Rothstein J.A. at paragraph 20 in Jaballah, supra, ". . . After all, under paragraph 78(c), the judge is under a duty to proceed expeditiously", the Court points out that there must be a review of the reasonableness of the certificate, and as the case may be, if necessary, a review of the lawfulness of the Minister's report in the coming months, while providing for a period of time that the parties need to prepare.
[12] This case has been before the Court, as designated judge, since the end of May 2003 and Mr. Charkaoui has been in detention since May 21, 2003. To date, there have been several judgments and three detention reviews have taken place. It is in the interest of justice and in the interest of Mr. Charkaoui that the Court proceed to review the reasonableness of the certificate and, as the case may be, if necessary, the lawfulness of the Minister's report.
[13] In that regard, the Court sets aside two five-day weeks, namely the weeks of November 22 and December 13, 2004. First, the Court gives Mr. Charkaoui the opportunity to be heard regarding the reasonableness of the certificate during the hearing scheduled for the week of November 22 and then, if necessary, the Court will hear the evidence on the lawfulness of the Minister's report. The Court advises that it is prepared to hear motions designed to facilitate filing of the evidence. The parties could foresee that the evidence already heard during earlier hearings would be filed in the context of future hearings and that the evidence filed during the next hearing in November would be filed for the purposes of the other hearing and vice-versa, if necessary.
[14] In order to facilitate following the above schedule, the Court gives Mr. Charkaoui until October 19, 2004, inclusively, to file his memorandum, his affidavits and his documents in the two files and the Ministers will have until November 8, 2004, to respond to them. Mr. Charkaoui will be able to file a reply no later than November 16, 2004. If the parties want to examine, they must do so with the cooperation of counsel. If that is impossible, an application should be made to the Court. All the examinations must be completed by November 15, 2004.
[15] Mr. Charkaoui is asking for costs. Mr. Charkaoui's arguments make no mention of seeking this relief and the Ministers did not have to respond. In immigration cases in general and according to the rules of the Court, the principle is that there are no costs unless there are special reasons.
[16] The parties have already been notified of this order in view of the motion for postponement and the imminence of the hearing. The Court had stated that reasons would follow.
FOR THESE REASONS THE COURT ORDERS THAT:
1. The motion for postponement of the hearing scheduled in Montreal on September 20, 21 and 22, 2004, is granted.
2. The hearing on the reasonableness of the certificate and the opportunity for Mr. Charkaoui to be heard will take place on November 22, 23, 24, 25 and 26, 2004, in Montréal and, if necessary, the hearing on the validity of the Minister's report will take place on December 13, 14, 15, 16 and 17, 2004; Mr. Charkaoui shall therefore be present at these hearings at 30 McGill Avenue, Montréal, at 9:30 a.m. and the Ministers are requested to ensure that he be present.
3. Mr. Charkaoui has until October 19, 2004, inclusively, to file his memorandums, his affidavits and his documents for the two files.
4. The Ministers shall have until November 8, 2004, inclusively, to respond thereto.
5. Mr. Charkaoui shall have a right to respond up to and including November 16, 2004.
6. All examinations shall be finished by November 15, 2004.
7. No costs are awarded.
"Simon Noël"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-3-03
STYLE OF CAUSE: IN THE MATTER OF A CERTIFICATE
PURSUANT TO SUBSECTION 77(1) OF THE
IMMIGRATION AND REFUGEE PROTECTION ACT
AND ADIL CHARKAOUI
DATE OF HEARING: WRITTEN MOTION EXAMINED WITHOUT APPEARANCE OF THE PARTIES
REASONS BY: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATE OF REASONS: SEPTEMBER 21, 2004
WRITTEN SUBMISSIONS BY:
DANIEL ROUSSY FOR THE SOLICITOR GENERAL OF CANADA
and
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 CANADA
DEPUTY ATTORNEY AND THE MINISTER OF CITIZENSHIP AND
GENERAL OF CANADA IMMIGRATION
DOYON, MORIN FOR ADIL CHARKAOUI
MONTRÉAL, QUEBEC
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