Date: 20011123
Docket: DES-4-01
Neutral citation: 2001 FCT 1287
BETWEEN:
IN THE MATTER OF a certificate pursuant to
Section 40.1 of the Immigration Act, R.S.C. 1985,
c. I-2, (the "Act");
AND IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada
pursuant to paragraph 40.1(3)(a) of the Act;
AND IN THE MATTER OF Mahmoud JABALLAH
REASONS FOR ORDERS
MacKAY J.
[1] These Reasons concern the disposition of a number of preliminary issues raised by the respondent, Mr. Mahmoud Jaballah, in response to a reference to the Court pursuant to s-s. 40.1(3) of the Immigration Act, R.S.N.S. 1985, c. I-2 as amended (the "Act"), for a determination whether a certificate of the opinion of the applicant Ministers concerning the respondent is reasonable on the basis of the evidence available to this Court, sitting as a judge designated in accord with s-s. 40.1(4) of the Act, or whether that certificate should be quashed.
[2] The certificate of the applicants, the Minister of Citizenship and Immigration and the Solicitor General of Canada, certifies their opinion, based upon security intelligence reports, that Mr. Jaballah, who is not a Canadian citizen but who claims Convention refugee status under the Act, is a member of inadmissible classes of persons described in the Act under s. 19. Those classes include persons who there are reasonable grounds to believe:
a) will, while in Canada engage in or instigate the subversion by force of any government, in this case the government of Egypt [subparagraph 19(1)(e)(ii)];
b) are members of an organization, in this case the Al Jihad (AJ), that there are reasonable grounds to believe will engage in or instigate the subversion by force of the government, of Egypt [subparagraph 19(1)(e)(iv)(B)] or will engage in terrorism [subparagraph 19(1)(e)(iv)(C)];
c) have engaged in terrorism [subparagraph 19(1)(f)(ii)];
d) are or were members of an organization, in this case AJ, that there are reasonable grounds to believe is, or was, engaged in terrorism [subparagraph 19(1)(f)(iii)(B)].
[3] These proceedings are unusual in that this is the second certificate with respect to Mr. Jaballah, issued for the same general purposes, by the applicant Ministers under the Act. The first, referred to the Court on April 6, 1999, after hearings, led to the determination by Mr. Justice Cullen on November 2, 1999, that the certificate of the Ministers was unreasonable in light of all the evidence then available to the Court. (See: Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681, Court file DES-6-99 (F.C.T.D.) (hereafter "Jaballah No. 1")).
[4] On August 14, 2001, the second certificate having been issued by the applicant Ministers, the respondent was arrested, and he has since been detained pursuant to the Act.
[5] On August 15, 2001, the certificate giving rise to this proceeding was referred to this Court. On August 22, 2001, in accord with subparagraphs 40.1(4)(a) and (b) and (5.1), I considered evidence submitted on behalf of the Ministers, in camera and ex parte. I then approved a summary statement to be provided to the respondent to enable him to be reasonably informed of the circumstances giving rise to the issue of the certificate, omitting from that summary any information , the disclosure of which, in my opinion, would be injurious to national security or the safety of persons. With that summary statement the respondent was provided with six binders of copies of documents, the binders being identified as A1, A2, A3, A4, A5, and B. These documents are copies of documents available to the Ministers filed in Court as evidence or information on which their opinion is based, excluding from this collection relevant documents which have been withheld on grounds of national security.
[6] Following release of the summary to the respondent, arrangements were made for hearings in regard to the Ministers' certificate, with the hearing of preliminary and procedural motions to commence on October 24, 2001. Hearings were subsequently adjourned, on motion of the applicant Ministers, to commence October 31, 2001 in Toronto. Those hearings commenced on October 31 and continued on November 1, 2001.
[7] The matters then dealt with included:
1. an oral motion on behalf of the applicant Ministers
a) that subpoenas duces tecum issued to them by the respondent on October 19 be quashed, subpoenas that were returnable on October 24 and then extended to November 2, 2001, on the Court's Order adjourning the proceedings; and
2. preliminary motions on behalf of the respondent, concerning
a) jurisdictional issues;
b) constitutional issues;
c) procedural issues;
d) if the Court does not stay the proceedings on preliminary grounds, then directions as to the use, if any, of the records in Court file DES-06-99 (the 1999 proceedings regarding the first certificate of the Ministers concerning Mr. Jaballah), and in Court file IMM-1828-99 (proceedings which led to an Order allowing Mr. Jaballah's application for judicial review of a decision concerning his refugee application and the related applications of his family);
e) issues concerning costs of responding to this application, including a "Rowbotham order" or costs on a solicitor-client basis, in any event.
[8] On November 1, 2001 after hearing from counsel for the parties, I ordered orally that the subpoenas issued on October 19, 2001 to each of the applicant Ministers be quashed, for reasons then orally given and herein confirmed. I reserved decision on the other issues then heard. These issues are now dealt with, in turn, by these Reasons, and by Orders now issued.
1. Subpoenas duces tecum issued to Ministers
[9] Subpoenas duces tecum were issued on behalf of the respondent on October 19, 2001 which directed the appearance, with all relevant documents, to testify in this proceeding, of the applicant Ministers of the Government of Canada, that is, the Minister of Citizenship and Immigration and the Solicitor General.
[10] Subpoenas issued on behalf of one of the parties to judicial proceedings are to be obeyed in the normal course, even if issued to Ministers of the Crown, unless they are set aside by the Court concerned. Any court is reluctant to interfere with the presentation of a party's case by setting aside a subpoena issued on the party's behalf. Yet the Court must deal with a challenge to the appropriateness of any subpoena. That challenge is here made by oral motion of counsel on behalf of the applicant Ministers.
[11] The challenge here raises the issue of the relevance of any testimony the Ministers might be asked to give in answer to questions put to them. For the Ministers it is urged that the respondent seeks to adduce evidence that would circumvent the statutory process establishing the limited role of a designated judge under s. 40.1 of the Immigration Act. For the respondent it is urged that the Ministers' testimony is relevant to the issue of abuse of process here raised as a preliminary issue, before any evidence is called.
[12] Counsel for the respondent was, perhaps understandably, reluctant to describe the purpose and relevancy of evidence he might seek to adduce if the Ministers were required to appear, but he suggested that in the special circumstances of this case he was entitled to seek evidence of the process followed by, and the understanding of, the applicant Ministers at the time the certificate in this matter was issued. In part this was desired because, it is said, there was a review of the role and processes followed by the Canadian Security Intelligence Service ("CSIS"), in relation to Jaballah No. 1, after the decision of Cullen J. in November 1999 that the first certificate filed concerning the respondent was unreasonable.
[13] In my opinion, questioning the background knowledge or intent of the Ministers concerned at the time of their decision to issue the second certificate would merely be a fishing expedition. I am not persuaded that the evidence suggested by counsel is relevant to the determination this Court must make under subparagraph 40.1(4)(d) to
determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available to ... the designated judge. ...
[14] The signature and filing of the certificate by the Ministers was done in the exercise of ministerial discretion. These were administrative actions undertaken in the discharge of statutory responsibilities vested by Parliament, in the interests of security of the state.
[15] In August 2001, Mr. Jaballah was the subject of a second certificate issued by the applicants in terms similar to that issued in 1999 and he was again detained, under the Immigration Act. The unusual process of issuing a second certificate is the basis of preliminary motions by the respondent that the proceeding be stayed on grounds of res judicata, issue estoppel or abuse of process. In relation to the preliminary issues it is the action of the Ministers, not their intent or their knowledge, which is in issue. Evidence of intent or knowledge is not relevant in considering those preliminary issues.
[16] I, therefore, by oral Order quashed the subpoenas issued to the Minister of Citizenship and Immigration and to the Solicitor General, dated October 19, 2001, summoning them to attend at Court on October 24, 2001 and made applicable by my earlier Order to require their attendance on Friday, November 2, 2001, subject to further Order. That "further Order" was issued orally on November 1, 2001, setting aside the subpoenas in question, and is now confirmed by written Order.
[17] Setting aside those subpoenas was done without prejudice to the issuing of further subpoenas by the respondent, even of the same Ministers, or other public officials, or of other persons who may be expected to provide evidence considered relevant in this matter.
2. Jurisdictional issues
[18] The respondent seeks an order staying the proceedings and in effect quashing the certificate issued by the Ministers, on several grounds which, it is urged, result in a lack of jurisdiction to proceed. Thus, it is said, both the jurisdiction of the Ministers to sign the certificate leading to these proceedings, and the jurisdiction of the Court to review the certificate, are lacking because
- the matter is res judicata and the issues, now raised again, are estopped, in light of the determination and reasons of Mr. Justice Cullen in Jaballah No. 1, in 1999;
- in the circumstances the "exhumed certificate" constitutes an abuse of the Court's process; and
- the certificate is void ab initio for failure to comply with requirements for reasons set, and is otherwise unreasonable as is required, by the Baker decision of the Supreme Court (i.e., [1999] 2 S.C.R. 817).
[19] The 1999 certificate issued by the applicants respecting Mr. Jaballah certified their opinion based on security intelligence reports that he was inadmissible to Canada as a member of the classes defined by the Act in subparagraphs 19(1)(e)(ii), 19(1)(e)(iv)(B), 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B). The certificate issued in August 2001 expresses anew the same opinion with respect to the respondent's admissibility, by reference to the same provisions of the Act.
[20] Despite these similarities in the 1999 and the 2001 certificates by the applicant Ministers concerning Mr. Jaballah, I am not persuaded, at this stage, that the Ministers were without jurisdiction in issuing the second certificate. The Court, sitting as a designated judge pursuant to s. 40.1 of the Act, clearly has jurisdiction to deal with proceedings arising from the certificate. In my opinion that includes the "inherent and residual discretion at common law to control [its] own process and prevent its abuse", as Madam Justice Arbour, writing for the Supreme Court of Canada, described Canadian courts' general authority (see United States of America v. Cobb, [2001] 1 S.C.R. 587 at 604).
[21] Here the applicants accept the inherent jurisdiction of the Court to control its own process by dealing with the issues of res judicata, issue estoppel and abuse of process, but they urge that the discretion to grant a stay of the proceedings at this stage not be exercised. In their view, none of the principles of res judicata, issue estoppel or abuse of process are applicable since the certificate was signed in 2001 only after new evidence was received by the Ministers following the determination of Mr. Justice Cullen in Jaballah No. 1.
[22] If that is so, it is urged by the applicants that the doctrine of res judicata does not apply, and the Court in exercise of its discretion should not consider issue estoppel, an equitable remedy to be applied in the interest of ensuring justice in all the circumstances (see Arnold v. National Westminster Bank plc., [1991] 3 All 41 at 50 (H.L.)). Further, it is urged that the test is not met for finding an abuse of process, that is, the proceedings be found unfair to the point that they are contrary to the interests of justice. It is said this is not one of the extraordinary cases that would warrant a stay of proceedings (see Canada v. Tobiass, [1997] 3 S.C.R. 391 at 429).
[23] In R. v. Keyowski, [1988] 1 S.C.R. 657 at 658-59, the Supreme Court confirmed that the test for a stay of proceedings as an appropriate remedy for an abuse of process is that initially formulated by the Ontario Court of Appeal in R. v. Young (1984), 40 C.R. (3d) 289, i.e., at least in criminal proceedings a stay should be granted where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency, or as elaborated in R. v. Jewett, [1985] 2 S.C.R. 128 at 136-37, where the proceedings are found to be oppressive or vexatious. In this case, it is urged by the applicants that Canada's international and national obligations to deal with those persons considered to be, or to be involved with, terrorists, warrant consideration in this proceeding and that a stay would be inappropriate.
[24] Counsel for the respondent submits that there is little or no new evidence, at least none that is apparent when the summary public statement of evidence supporting the certificate in 1999, provided then to Mr. Jaballah, is compared with the statement issued to him in relation to the 2001 certificate. One new matter, referred to by counsel for Mr. Jaballah, is the imposition of a death sentence imposed in absentia on Mr. Jaballah by an Egyptian court since the decision in Jaballah No. 1. Insofar as any other evidence is said to be new by the applicants, the respondent queries when it may have been available to the applicants, suggesting if it were available before Cullen J.'s decision was filed in November 1999 it could not be considered to warrant a new proceeding. If there were new evidence, it is urged for the respondent that it ought to be significant enough to support the issue of a new certificate without reference to the evidence adduced for the first certificate.
[25] The difference between the parties on these preliminary issues arises because of their different perspectives on whether "new evidence" now available to the applicant Ministers warrants the issuance of a second certificate and these proceedings to assess its reasonableness. That difference cannot be resolved at this preliminary stage in this proceeding. This Court had not read the decision of Cullen J. in Jaballah No. 1 in advance of the hearing, and had not sought to compare the summary statements provided to the respondent with each of the certificates, although both those statements were included in the respondent's motion record for its motion for orders on preliminary issues. Refraining from comparing those summary statements and the decision of Cullen J. was deliberate, pending hearing of the preliminary arguments of counsel.
[26] In the circumstances the Court had no basis to assess whether new evidence provided to the Ministers takes this case outside the application of the principles of res judicata or of issue estoppel, and no basis to assess whether this proceeding may ultimately be judged an abuse of process. Thus, the respondent's preliminary motion for a stay or a declaration that the Court is without jurisdiction, is dismissed by Order. That does not preclude the respondent seeking to renew argument about those principles in light of the evidence that may be adduced.
[27] The final argument of the respondent about the jurisdiction of the Ministers, and of this Court, is based on the decision of the Supreme Court of Canada in Baker v. Minister of Citizenship and Immigration, supra. It is urged that the decision of the Ministers certified by the certificate of August 2001 is made without reasons, which are required because of the serious nature of the decision in terms of its consequences for Mr. Jaballah. With respect, while Madam Justice L'Heureux-Dubé, writing for the Court, recognized that in circumstances where the decision has important significance for the individual, or where there is a statutory right of appeal, while the duty of fairness requires an explanation for the decision, that may be found in other documents. In that case, the learned Justice found reasons in the notes of an officer recommending the decision later made. In the case at bar the requirement of reasons for the decision, in my opinion, is fully met by the public statement provided to the respondent summarizing the evidence and information upon which the Ministers relied, excluding security classified information available to them and submitted to this Court at the in camera ex parte hearing. Whether that statement, and other evidence provided to the Ministers and examined by the Court in camera and ex parte, provides a reasonable basis for the opinion of the Ministers is the issue to be determined by the Court.
[28] That does not fully dispose of the respondent's argument based on Baker and its emphasis on the reasonableness of the decision in question in the broad context of the case. Here matters to be weighed include, it is suggested, the determination in 1999 that the first certificate concerning Mr. Jaballah was found to be unreasonable, the extraordinary process under s. 40.1 of the Act which includes the possibility of reliance upon evidence adduced in secret and not revealed to the respondent, a process which it is said imperils an independent judiciary as a significant pillar of our constitution. Moreover, the Court should not ignore other processes that exist under the law for dealing with Mr. Jaballah. Counsel urges that in this context the issuance of a certificate for a second time is vexatious, shocking the conscience of persons who care about the rule of law in Canada. In sum, the action of the Ministers, and the proceedings of this Court, in this case are an abuse of process.
[29] At the hearing I noted the difference between the perception of the applicants and that of the respondent about whether there is new evidence, not available to the applicant Ministers before the decision in Jaballah No. 1, upon which the certificate now before the Court is based. Since the Court at this stage is not able to assess whether there is new evidence to support the second certificate, I dismiss the respondent's motion for a stay.
[30] Nevertheless, in my view, there can be no doubt that fairness requires that Mr. Jaballah be apprised of the "new evidence" that is not classified for security purposes, now said to be the basis for the opinion certified by the Ministers. As a first step towards meeting that requirement I directed counsel for the applicants to prepare and provide to counsel for the respondent, a statement setting out the "new evidence" referred to in the summary statement provided in regard to the August 2001 certificate which was not included in the previous summary statement issued in 1999.
[31] Since the hearing on November 1, 2001, I note that counsel have exchanged correspondence which indicates that the efforts of counsel for the applicant Ministers to specify what new evidence and information underlies the 2001 certificate have not described that which is "new" in a manner satisfactory to the respondent. I invite counsel to consider further the matter of identifying the new information, in particular with reference to any advice to the Court on the possible issuance of a further statement by the designated judge which would seek to describe what is considered new evidence and information before the Court that was not a basis for the opinion rendered in 1999. Provision of that statement, if made, should be accompanied with a statement identifying documents provided to Mr. Jaballah in binders A1, A2, A3, A4, A5 and B on August 23, 2001, which were not included in a comparable collection of "public" documents provided to him in 1999.
Constitutional issues
[32] For the respondent constitutional issues are raised as preliminary issues for determination. These are in regard to substantive matters concerning the validity or applicability of the legislation underlying these proceedings, or of the jurisprudence of the Federal Court dealing with other similar proceedings. Constitutional issues in a procedural sense are also of interest, if this proceeding is not stayed, that is, whether its process is bound by constitutional norms or values. I deal with these in turn.
[33] As for the substantive issues raised, I note that these same issues were raised by the respondent in Canada (Minister of Citizenship and Immigration) v. Mahjoub by preliminary motion which was dismissed by my colleague Mr. Justice Nadon by his decision dated January 23, 2001 (see (2001), 13 Imm. L.R.), [2001] F.C.J. No. 79 QL. (F.C.T.D.)). Counsel for Mr. Jaballah acknowledges the issues raised here are similar to those raised before and disposed of by Nadon J., but for possible future questioning of any decision I may make in these proceedings they are again raised for consideration. These issues, which I describe as substantive issues, underlie the respondent's motion for the following orders:
i) a declaration that ss. 40.1(1), (2) and (3) are of no force and effect as offending the rights enshrined in the pre-amble to the Constitution Act, 1867, the English Bill of Rights (1689) and s. 7 of the Charter,
ii) a declaration that ss. 40.1(4) and (5.1) and the in camera nature of the proceedings and denial of disclosure contravenes the rights to a fair and public hearing before a fair and impartial tribunal as guaranteed,
A) at common law;
B) under the Constitutional Acts, 1867 and 1982;
C) s. 7 of the Charter;
iii) a declaration that ss. 40.1(4) and (5.1) and the in camera, ex parte, proceedings contravene s. 7 of the Charter for:
A) "void for vagueness" in that "national security" is a term void for vagueness as is "terrorism";
B) "overbreath" in that the blanket statutory measures employed suffer from overbreath;
C) void for vagueness and overbreath under s. 7 of the Charter and at common law;
iv) a declaration that the entire scope, operation, applicability, and procedure under s. 40.1 of the Immigration Act contravenes the constitutional imperatives to an independent judiciary as:
A) enshrined in the pre-amble to the Constitution Act, 1867; and
B) under s. 7 of the Charter;
v) a declaration that the Federal Court "common law", or jurisprudence, interpreting the scope, procedure and applicability of s. 40.1 of the Immigration Act is unconstitutional for the reasons set out in (i) to (iv) above and further relies on the doctrine of persona designata notwithstanding such doctrine was abolished by the SCC in 1982; and
...
vii) an order quashing the Ministerial certificate and such further remedy pursuant to s. 24(1) of the Charter and the Federal Court Act as counsel may advise and this Court grant.
[34] I note that some, but not all, of the substantive issues raised by the respondent appear to have been resolved with respect to proceedings under s-s. 40.1 by the decision of Madam Justice McGillis in Ahani v. Canada, [1995] 3 F.C. 669, [1995] F.C.J. No. 1190 QL, (appeal dismissed [1996] F.C.J. No. 93 (F.C.A.), leave to appeal refused [1997] 2 S.C.R., [1996] S.C.C.A. No. 496). She there held that s. 40.1 (except 40.1(5.1) which was not in issue) did not infringe or deny rights guaranteed by ss. 7, 9, or 10(c) of the Charter, or by paragraph 2(e) of the Bill of Rights.
[35] I note also that in Mahjoub, supra, Nadon J., after argument and deliberation, held that as a designated judge under s. 40.1(4) he did not have authority to do more than assess the reasonableness of the Ministers' certificate issued under s-s. 40.1(1) in light of the evidence available to him, and in particular he was without jurisdiction to consider the constitutionality of the legislation. In so concluding, he followed decisions of Mr. Justice Denault in Re Baroud (1995), 98 F.T.R. 99, and of Mr. Justice Cullen in Suresh v. Canada (1996), 105 F.T.R. 299 and he also relied on his inference drawn from the lack of comment on those decisions by Mr. Justice McDonald, writing for the Court of Appeal and distinguishing proceedings under s-s. 40.1(4) from those before him under, under s-s. 40.1(9) providing for release of a person held in detention. In the latter proceedings he held that a designated judge has jurisdiction to entertain Charter arguments with respect to the terms of a questioned order.
[36] The substantive constitutional issues raised as preliminary issues were not argued before me on November 1 as other preliminary issues were. It had been directed, after pre-hearing consultation with counsel for the parties, that if the respondent wished to argue those issues that would be done at a time following the initial hearing. Nevertheless, I refer to jurisprudence of the Court in relation to some, if not all, of the constitutional issues now raised simply to note that if those are argued, I would follow the Court of Appeal, and in all likelihood adopt the conclusions and reasoning of my colleagues in the Trial Division in relation to the same issues, unless I were to be persuaded their conclusions are clearly wrong. That will not surprise counsel for the respondent. It would be in accord with the principle of judicial comity and in the interests of certainty in the law unless a higher court determines otherwise.
[37] That said, I acknowledge that the respondent desires the record to show these issues were raised. I am prepared to have them argued or to accept argument on them as addressed to Mr. Justice Nadon in Mahjoub, supra, as may appear from any transcript of proceedings before him, or to accept the issues as having been raised and this Court's indication that it is not likely to be persuaded that Nadon J. was clearly wrong, and for the same reasons as he set out in Mahjoub this Court would conclude that it is without jurisdiction to determine substantive constitutional issues underlying the orders requested as set out above in the same terms as they were set out in Mahjoub. The Court awaits an indication from counsel for the respondent about the manner of dealing with these issues in this case at a future hearing date.
[38] I turn to the second aspect of constitutional issues raised by the respondent, that is whether in the process of a hearing pursuant to s-s. 40.1(4) this Court considers it is bound by constitutional norms. For the respondent a number of questions are suggested, concerning the process to be followed, as set out in written submissions referred to (at pp. 180 to 184 of the respondent's record) but not argued at the preliminary hearing.
[39] The Court is not prepared to respond to those questions, or to agree to specified suggestions as to its responsibilities without argument about those issues. At this stage only a general response can be made to the process issues raised by the respondent, in these terms: the Court in the conduct of these proceedings, within the framework specified by s. 40.1, is bound by constitutional norms and values including those under the Charter.
[40] Thus, unless I am persuaded otherwise, these proceedings are concerned with determination of the reasonableness of the Ministers' certificate/opinion in light of the evidence before them that is made available to the Court as a designated judge in this case, pursuant to s-s. 40.1(4). The proceedings, subject to s-ss. 40.1(4)(b) and 40.1(5.1), may engage examination of the process of investigation insofar as it relates to the relevance and reliability of the evidence before the Ministers and before the Court. The Court will be concerned with the validity of the certificate issued only if it finds that certificate to be unreasonable in light of the evidence available to the Court, in which case the certificate is to be quashed under paragraph 40.1(4)(d). I do not consider these proceedings to be a typical judicial review, for the relief available to the Court, and the issue before the Court, are both more limited than in the case of a regular judicial review. Here the only issue is a determination of the reasonableness of the certificate/opinion in light of the evidence and information available to the Court.
[41] That said, if clarification of the application of constitutional norms and values in these proceedings is desired in relation to specific issues those may be raised and argued at future hearings.
Procedural issues
[42] If the Court were not to stay this proceeding at this stage, the respondent raises procedural issues, other than constitutional process issues, seeking orders for disclosure, including orders
1. "of directions akin to a Garofoli, Carey or O'Connor application to release an edited version of what is different before MacKay J. than Cullen J. in 1999";
2. compelling the applicant to provide further disclosure, compelling the attendance of certain persons and release of tapes or notes of officers who interviewed either the respondent or third parties concerning the respondent.
[43] In addition the respondent seeks an order compelling payment of costs by the Ministers on a solicitor-client basis in any event. I deal with these matters in reverse order.
[44] With reference to costs of counsel serving the respondent, it is said that despite application for assistance under the Ontario Legal Aid Plan, and follow-up requests thereafter, no indication of a decision on possible assistance from that source was made up to November 1. Yet for Mr. Jaballah it is said that he is without resources to provide for essential services of counsel and funds for that purpose should be provided by the Attorney General for Canada. There was no evidence before me to support Mr. Jaballah's request for a Rowbotham Order (see (1988) 41 C.C.C. (3d) 1 (Ont. C.A.)) or some other basis for support for continuing services. I decline, at this stage, to make any order on this request, which request I simply adjourn.
[45] Nevertheless, there can be little doubt that the respondent, Mr. Jaballah, requires legal advice and the assistance of counsel. Counsel do not dispute the Court's discretion to award costs at the conclusion of proceedings, in accord with the Federal Court Rules, 1998. Indeed, since the hearing on November 1, 2001, Mr. Justice McKeown has ordered that Mr. Jaballah shall have his costs on a party and party basis which were incurred in Jaballah No. 1.
[46] After hearing counsel for both parties concerning disclosure of persons to be compelled to attend with tapes or notes of interviews of either the respondent before or after his detention or of third parties interviewed about the respondent, I note that counsel for the Ministers indicated names of CSIS officers who conducted interviews, would be provided and they would be available if the respondent desires to call them to testify. As for any officers of the RCMP who may have interviewed Mr. Jaballah, or others about him, it was suggested that the respondent can subpoena them to testify.
[47] An Order now issued directs that counsel for the Ministers provide to counsel for the respondent:
i) a name or names of one or more CSIS officers who are knowledgeable about the summary public statements provided to Mr. Jaballah in this case and in Jaballah No. 1;
ii) a list of all officers of CSIS, of the RCMP and any other public servants of the Government of Canada who have interviewed Mr. Jaballah, or others about him, unless revealing the names of those others would reasonably be seen to place them in jeopardy. That list should indicate the dates of any interview and whether tapes, notes or written reports of the interview are available.
[48] The respondent also seeks disclosure, in written submissions, of a synopsis "of the nature of the material ordered sealed by Nadon J., June 30, 2000, and if refusing to disclose, particulars of the national security interest or injury which forecloses disclosure", and "where the nature of the material is in the nature of proceedings and evidence, statutorily governed by procedure, such as wire-taps, the legal authority for the wiretaps and a determination of their validity". I am uncertain what is intended by these requests and I make no order in relation to them.
[49] The motion for an order for disclosure, akin to orders in R. v. Garofoli, [1990] 2 S.C.R. 1421, Carey v. Ontario, [1986] 2 S.C.R. 637, or R. v. O'Connor, [1995] 4 S.C.R. 411, I decline to make at this stage. Nevertheless I invite counsel for the parties to make further submissions on the respondent's request for "an edited version of what is different" before me from the matters before Cullen J. in Jaballah No. 1. Those submissions should be concerned with the process for possible preparation of a statement of the differences.
[50] The motion on behalf of Mr. Jaballah for an order "releasing the content(s) of the CSIS report ordered held from the respondent by pro forma Order of McKay J." is dismissed. The reference to a pro forma order relates to my Order dated August 22, 2001, issued following the in camera, ex parte hearing, with counsel for the Ministers and in the absence of Mr. Jaballah and his counsel, requested pursuant to subparagraph 40.1(4)(a) and subsection 40.1(5.1) of the Act. That Order, issued pursuant to subparagraphs 40.1(4)(b) and 40.1(5.1)(a) recites the motion for admission in confidence of information received in confidence from governments or institutions of foreign states, and my determination that the information contained in the security intelligence report upon which the Ministers' opinion is based should not be disclosed on the ground that its disclosure would be injurious to national security or the safety of persons. Further, pursuant to subparagraph 40.1(5.1)(d) of the Act, that information received in confidence was ordered not to be summarized in the summary statement of information available to the Ministers and to the Court, which statement was provided to Mr. Jaballah in accord with subparagraph 40.1(4)(b) of the Act. There is no basis for varying that Order.
[51] The request on behalf of Mr. Jaballah for directions about the use, if any, in these proceedings of the records in Court files DES-06-99 (Jaballah No. 1) and IMM-1828-99 is adjourned, to be considered further on submissions to be made by counsel for the parties.
Conclusion
[52] Orders now issue, one confirming the oral order of November 1, 2001 which quashed subpoenas issued on October 19 to the Ministers, and the second dealing with other matters here considered, in accord with these Reasons.
[53] Tentative arrangements for continuing hearings in this matter on December 5, 2001 in Toronto were discussed at the close of the hearing on November 1. I now direct the Registry to arrange a telephone conference with counsel for the parties, as early in the week of November 26 as may be convenient for counsel, to discuss arrangements and a schedule for further hearings in this reference.
(signed) W. Andrew MacKay
____________________________
JUDGE
OTTAWA, Ontario
November 23, 2001.
Email this Content