Date: 20010123
Docket: DES-01-2000
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MOHAMED ZEKI MAHJOUB
Respondent
ORDER AND REASONS FOR ORDER
NADON J.:
[1] By his motion, the respondent seeks to challenge, inter alia, the constitutionality of the relevant legislation, namely subsections 40.1(1), (2), (3), (4) and (5.1) of the Immigration Act (the Act). Specifically, the respondent seeks 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 measurers 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
vi) an order granting the Respondent interim judicial release pending the determination of the certificate by the Court;
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.
[2] After some hesitation, I have concluded that, sitting as a designated judge pursuant to subsection 40.1(4) of the Act, I am without jurisdiction to consider the constitutionality of the impugned legislation.
[3] In Re Baroud (1995), 98 F.T.R. 99, Re Shandi (1992), 51 F.T.R. 252 and in Suresh v. Canada (1996), 105 F.T.R. 299, my colleagues Denault J. and Cullen J. concluded that the judges designated under subsection 40.1 (4) could not entertain and decide submissions concerning the constitutionality of legislation. In Re Baroud, Denault J. at page 108 (paragraph 23), made the following remarks:
I have an obligation to enforce the applicable legislation and, in the context of this hearing, it is not my role to determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms.
[4] In a footnote, Denault J. pointed out that the respondent, Mr. Baroud, had launched an action challenging the constitutional validity, applicability and operability of section 40.1 of the Act.
[5] In Suresh, Cullen J. held that the designated judge reviewing a certificate issued under section 40.1 of the Act was without jurisdiction to consider Charter and constitutional arguments and to grant the appropriate remedies. At pages 301 to 304 (paragraphs 4, 7, 8, 9, 13 and 14) Cullen J. explained his conclusion as follows:
[4] Earlier decisions of this court determined that a designated judge was without jurisdiction to hear Charter issues. In the case of Re Shandi ((1992), 51 F.T.R. 252; 17 Imm L.R.(2d) 54 (T.D.)) I stated:
"I ruled that the constitutionality of sections of the Immigration Act could not be challenged at the hearing but that I would accept arguments based on the possibility that the Charter rights of the applicant had not been met. This latter pronouncement by me was in error and conformed with the dissenting judgment of Lamer, J., of the Supreme Court of Canada in United Stated v. Allard, 1987, 1 R.C.S. 546, but not with the majority decision of McIntyre, J., in Mills v. The Queen, 1986, 1 R.C.S., 863."
In Re Baroud, ((1995), 98 F.T.R. 99 (T.D.), Denault, J., found that the role of the court was to enforce the applicable legislation and, in the context of a s. 40.1 hearing, it was not the role of the court to "determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms". However, in both of these cases, the respondent Ministers argued that the court was without jurisdiction and the issue was not otherwise fully explored. While I do not agree with the applicant that these cases were wrongly decided, I was willing to consider the applicant's arguments.
[...]
[7] In my view, the real issue is whether the designated judge in a s. 40.1 hearing has jurisdiction to grant the remedy sought. Section 40.1(4)(d) states that the designated judge shall "determine whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and the information available to the Chief justice or the designated judge, as the case may be, and, if found not to be reasonable, quash the certificate". In Re Baroud, Denault, J., found that the role of this court is neither to substitute its decision for that of the Minister and the Solicitor General, nor to find that they were correct in their assessment of the evidence. Rather, the designated judge must determine, based on the evidence presented to him or her, whether the Ministers' decision to issue the certificate is reasonable.
[8] Does the assessment of reasonableness, pursuant to s. 40.1(4)(d), include as assessment of whether upholding the certificate would breach the applicant's constitutional rights? I do not find that it does. Im my view, reasonableness and constitutionality are distinct issues. Reasonableness involves an evaluation of the evidence to determine if it supports the Ministers' decision; constitutionality is a more in-depth assessment of the applicant's constitutional rights. In my view, a plain reading of s. 40.1(4)(d) gives the designated judge jurisdiction only to consider the reasonableness of the certificate. If Parliament had intended the designated judge to consider the validity of the certificate, including its constitutionality, the section could have been so drafted.
[9] My decision that the designated judge does not have jurisdiction to consider Charter matters is further supported by the fact that there is no appeal from the decision of the designated judge. Section 40.1(6) states:
"A determination under paragraph (4)(d) is not subject to appeal or review by any court".
By expressly prohibiting further appeal or review, Parliament reinforced the notion that proceedings under s. 40.1 of the Immigration Act are intended only to consider whether the Ministers' decision to issue the certificate is reasonable on the basis of the available evidence.
[...]
[13] While accepting the principles set out in the above-noted cases, the applicant's argument is based on the assumption that the designated judge is a "court of competent jurisdiction" to hear Charter arguments. If the designated judge has no jurisdiction to hear Charter arguments, then the lack of an appeal is irrelevant. In my view, the lack of appeal is premised on an assumption that the designated judge does not have such jurisdiction. It is further indication that Parliament intended that the designated judge only consider whether the certificate is reasonable on the basis of the available evidence. Questions of Charter infringement demand a much higher standard of proof and are incompatible with merely an assessment of reasonableness.
[14] In summary, the clear language of s. 40.1 of the Immigration Act is incompatible with extensive Charter review and it is my conclusion that the designated judge in the review of a certificate does not have jurisdiction to consider arguments and grant remedies pursuant to s. 24(1) Canadian Charter of Rights and Freedoms and s. 52(1) of the Constitution Act, 1982. Accordingly, this application is dismissed.
[6] Although I initially had doubts regarding Cullen J.'s conclusion, I am now satisfied that his conclusion is the correct one. I find support for Cullen J.'s conclusion in the Federal Court of Appeal's decision in Suresh v. Canada (Minister of Citizenship and Immigration)(1998), 229 N.R. 240. The issue before the Court of Appeal was whether a judge designated under subsections 40.1(8) and (9) of the Act had jurisdiction to hear constitutional issues that arose from an order made by a judge pursuant to subsection 40.1(9) of the Act.
[7] In concluding that there was nothing in the Act preventing the designated judge to consider constitutional issues on a subsection 40.1(8) application, McDonald J., for the Court of Appeal, reviewed Re Baroud and Suresh, supra. Distinguishing those cases from the case before him, McDonald J., at pages 244, 245 and 246 made the following remarks:
[9] With respect to the jurisdiction issue, I am convinced that there is nothing in the Act limiting a designated Judge on jurisdictional grounds from considering constitutional issues on a s.40.1(8) application. The cases cited by the appellant as standing for the proposition that constitutional issues can not be considered are, in any event, easily distinguished on their facts.
[10] In Baroud, supra, Denault, J., was called on to consider under s.40.1(4)(d) of the Act whether a security certificate signed and filed by the Solicitor General of Canada and the Minister of Immigration and Citizenship was reasonable. In reaching his decision that the certificate was reasonable, he stated at p 108: "I have an obligation to enforce the applicable legislation and, in the context of this hearing, it is not my role to determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms." In Suresh, supra, Cullen, J., considered the very same provision of the Immigration Act. In discussing the issue of jurisdiction he stated:
"At issue is whether Mr. Justice Teitelbaum, sitting as the designated judge, has jurisdiction to hear the applicant's Charter arguments and, if required, issue a Charter remedy.
"Earlier decisions of this court determined that a designated judge was without jurisdiction to hear Charter issues. In the case of Re Shandi [cite omitted] I stated:
"I ruled that the constitutionality of sections of the Immigration Act could not be challenged at the hearing but that I would accept arguments based on the possibility that the Charter rights of the applicant had not been met. This latter pronouncement by me was in error and conformed with the dissenting judgment of Lamer J. of the Supreme Court of Canada in United States v. Allard [cite omitted] but not with the majority decision of McIntyre J, in Mills v The Queen [cite omitted]
"In Re Baroud [cite omitted] Denault, J., found that the role of the court was to enforce the applicable legislation and, in the context of a s.46.1 hearing, it was not the role of the Court to 'determine whether the section in question is contrary to the rights and liberties guaranteed by the Canadian Charter of Rights and Freedoms." However, in both of these cases, the respondent Ministers argued that the court was without jurisdiction and the issue was not otherwise fully explored. While I do not agree with the applicant that these cases were wrongly decided, I was willing to consider the applicant's arguments."
[11] After considering the jurisdiction issue, Cullen, J., concluded that provided the designated judge has jurisdiction over the whole of the matter before him or her -- the parties, the subject matter and the remedy sought -- the judge has jurisdiction to hear constitutional arguments. He found that because s.40(4)(d) of the Act only gave the designated judge jurisdiction to consider the reasonableness of the certificate, constitutional arguments could not be entertained.
[12] I would note that a prominent factor giving rise to Cullen J's decision in Suresh was that s.40.1(6) of the Act sets out that a determination under paragraph 4(d) is not subject to appeal or review by any court.3 There is no such corresponding limit pertaining to s.40.1(8) of the Act. Further, both Suresh and Baroud were concerned with attacking the constitutionality of an entire section of the Act (for instance, in Suresh clauses 19(1)(e)(iv)(C) and 19(1)(f)(iii)(B)) whereas in the case at bar, we are concerned only with the constitutionality of the terms of an order made by the designated Judge. These cases are, therefore, distinguishable on the ground that they arose under a different section of the Act which limits any right of appeal and on the ground that they were concerned with entirely different issues.
[13] Thus, I find that a designated judge under subsection 40.1(8) of the Act has jurisdiction to entertain Charter arguments with respect to the constitutionality of the terms of any order made under subsection 40.1(9) of the Act. Indeed, a designated judge is compelled to consider the constitutionality of any order he or she makes pursuant to this subsection. Unlike a proceeding under subsection (4) he has the remedy available: namely, the appropriate wording of the release conditions...
[8] Although McDonald J. does not expressly say that he agrees with Cullen J.'s reasoning in Suresh, supra, I can only conclude that the Court of Appeal did not disagree with Cullen J.'s conclusion that the designated judge under subsection 40.1(4) of the Act is without jurisdiction to decide constitutional and Charter issues. Had the Court of Appeal disagreed or entertained doubts on the issue, I am certain that it would have made its disagreement or its doubts known.
[9] I am therefore of the view that I do not have jurisdiction to decide the constitutional and Charter issues raised by the respondent herein. As a result, that part of his motion is dismissed.
"Marc Nadon"
Judge
MONTREAL, QUEBEC
January 23, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010123
Docket: DES-01-2000
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MOHAMED ZEKI MAHJOUB
Respondent
ORDER AND REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-01-2000
STYLE OF CAUSE:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
MOHAMED ZEKI MAHJOUB
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: January 16, 2001
ORDER AND REASONS
FOR ORDERBY: THE HONOURABLE MR. JUSTICE NADON
DATED: January 23, 2001
APPEARANCES:
| Mr. Donald McIntosh and Ms. Negar Hashemi
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For the Minister of Citizenship and Immigration (applicant)
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| Mr. Robert Batt and Mr. Daniel Roussy
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For the Solicitor General of Canada (applicant)
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| Mr. Rocco Galati and Mr. Roger Rodrigues
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For the respondent
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| Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
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For the applicant (Minister of Citizenship and Immigration and the Solicitor General of Canada
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| Galati, Rodrigues & Associates
Toronto, Ontario
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For the respondent
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