Date:
20090925
Docket: DES-6-08
Citation :
2009 FC 969
Ottawa, Ontario, September 25, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to
section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND
IN THE MATTER OF the referral of a
certificate
to the Federal Court pursuant to
section 77(1)
of the IRPA;
AND
IN THE MATTER OF
MAHMOUD
ES-SAYYID JABALLAH
REASONS FOR ORDER
[1] Commencing
on September 28, 2009, the Court will hear open submissions with respect to a
motion brought by the special advocates. The motion seeks an order staying
this proceeding on grounds that the proceeding:
(i)
is barred by principles of res judicata, cause of action estoppel
and issue estoppel;
(ii)
is an abuse of process; and
(iii)
infringes s. 7 of the Canadian Charter of Rights and Freedoms.
[2] At
a case management conference held September 10, 2009, counsel for Mr. Jaballah
proposed that, at the open hearing, the special advocates would advance the
lead legal submissions in support of the motion. Counsel for Mr. Jaballah
would thereafter supplement those submissions as might be required.
[3] Subsequently,
the Ministers objected to that proposal. The Ministers' objection is primarily
based upon the fact that the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act) does not contemplate special advocates "assuming
the role of the named person's counsel and arguing motions in public as though
they themselves were the named person's lawyer". The Ministers also
express "more general concerns about duplication and judicial economy if the
[special advocates] are permitted to take a major role in arguing motions in
public. In addition, the Ministers believe that there would be a heightened
risk of inadvertent disclosure in the fluid context of a motion in open court,
where the [special advocates] would be acting to protect the named person's
interests and may well need to communicate or obtain ‘instructions’ on the
spot."
[4] The
current dispute must be viewed in the context of the specific, and unusual,
circumstances now before the Court. Those circumstances may be summarized as
follows:
1.
Following the completion of their review of the Charkaoui II
disclosure, the special advocates advised the Court of their intention to bring
this motion. This intention was communicated to Mr. Jaballah and his counsel by
the Court's communication of July 20, 2009. The communication expressed the
special advocates’ view that “this motion must be heard entirely in camera because
the argument is based upon the content of documents protected by national
security privilege.” The communication also confirmed the deadlines for the
filing of confidential motion materials by the special advocates and the
Ministers.
2.
The motion was scheduled to be heard in camera on August 31, 2009
and September 1, 2009.
3.
On August 13, 2009, counsel for the Ministers wrote to the Court
expressing the view that the special advocates’ motion was "duplicative of
relief that is being sought by counsel in the public proceedings in a motion
dated July 13, 2009. Given that counsel for Mr. Jaballah have brought a
similar motion, the motion brought by the special advocates should not proceed
without argument in public where the Court should determine if there is a basis
for a reconsideration of matters decided by Justice McKay in the second
certificate proceedings. In the Ministers' view counsel should argue the res
judicata motion in public. In the event that there are matters that have to be
dealt with in camera pertaining to this motion, the Court can, in the exercise
of its discretion, deal with any evidentiary matters that are required to be
dealt with in camera." (This reference to the motion brought by counsel
for Mr. Jaballah relates to a notice of motion provided to alert the Court to a
number of motions to be brought on Mr. Jaballah's part and to allow a
determination to be made as to when the motions would be heard. Some
confusion may have arisen from that notice of motion. Counsel for Mr. Jaballah
have, however, confirmed that such motion is not currently before the Court. The
only pending motion for a stay of proceedings is that brought by the special
advocates.)
4.
The August 13, 2009 letter from counsel for the Ministers was discussed
at a case management conference on August 26, 2009. It was agreed that the res
judicata motion would first be argued in public on September 28, 2009 and following,
and that there would be a subsequent closed hearing. As a result, the in
camera hearing scheduled for August 31, 2009 was adjourned. Public
versions of the special advocates' motion materials were filed. Mr. Jaballah's
motion materials (in which he “join[ed] with the special advocates in seeking
to have this proceeding stayed”) were filed on September 8, 2009. The
Ministers' open and closed materials were filed on September 22, 2009.
[5] Now,
after the special advocates’ in camera motion has been adjourned in
order to permit a public portion to proceed first, the Ministers assert that
counsel for Mr. Jaballah must have primary carriage of the public portion of
the special advocates’ motion. The Ministers do concede, however, that the
special advocates would have some right to participate in that oral argument.
They say that, if counsel for Mr. Jaballah fail to address a point in their
argument, the special advocates may make supplementary submissions raising that
point.
[6] The
role of the special advocates is set out in subsection 85.1(1) of the Act. Special
advocates are "to protect the interests of the permanent resident or
foreign national in a proceeding … when information or other evidence is heard in
the absence of the public and of the permanent resident or foreign national and
their counsel." (Underlining added.) To that end, s. 85.2 of the Act
defines the powers of the special advocates. Subsection 85.2(a) permits
special advocates to "make oral and written submissions with respect to
the information and other evidence that is provided by the Minister and is not
disclosed" to the person concerned and their counsel.
[7] In
light of that statutorily conferred power, the Ministers do not challenge the
right of the special advocates to bring a motion in the closed proceeding,
based upon the closed materials. This is what the special advocates have done.
[8] However,
the open court principle, as reflected in paragraph 83(1)(d) of the Act,
applies to this motion. The resulting consequence is that, to the extent that
matters of fact or law may be disclosed without causing injury to national security
or endangering any person’s safety, the matters of fact or law must be publicly
disclosed. To the extent that any portion of a hearing may be heard in open court
without causing injury to national security or endangering any person's safety,
the hearing must be open. Thus, a public version of the special advocates'
submissions was filed on the public record.
[9] To
summarize, the motion now before the Court was properly brought by the special
advocates. They have made open and closed written submissions based upon the closed
record. They will make confidential oral submissions to the Court with respect
to the closed record. These actions are specifically authorized by subsection
85.2(a) of the Act.
[10] In
the unusual circumstances now before the Court, I see no violation of the
spirit or letter of the Act if the special advocates make their oral
submissions in public to the extent that those submissions do not disclose
information that would be injurious to national security or endanger the safety
of any person. In the circumstances, because the motion before the Court is one
brought by the special advocates, they should be the first to make their
submissions. This is the usual manner of proceeding. Counsel for Mr. Jaballah
may then orally supplement those submissions. The Ministers may argue in
response. This procedure is consistent with both subsection 85.2(a) of the Act
and the open court principle.
[11] In
closing, I see no real risk of any inadvertent disclosure of confidential information.
No viva voce evidence will be adduced and the submissions will reflect
the facts and matters contained in the public motion records. Similarly, I can
foresee no need on the part of the special advocates to communicate with, or
obtain “instructions” from, Mr. Jaballah as the Ministers suggest. The special
advocates have previously been given leave, pursuant to s.s. 85.4(2) of the
Act, to communicate with counsel for Mr. Jaballah about this motion on
condition that there be no disclosure, direct or indirect, of confidential
information or evidence.
[12] For
these reasons, the Ministers' objection to the special advocates presenting, in
public, the lead submissions in support of their motion for a stay of
proceedings is dismissed. An order has issued by which the Court authorized
the special advocates to present, at the open hearing, the lead submissions in
support of their motion for a stay of proceedings.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-6-08
STYLE OF CAUSE:
IN
THE MATTER OF a certificate signed pursuant
to
section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND
IN THE MATTER OF the referral of a
certificate
to the Federal Court pursuant to
section 77(1)
of the IRPA;
AND
IN THE MATTER OF
MAHMOUD
ES-SAYYID JABALLAH
PLACE OF HEARING: Ottawa, Ontario
DATES OF HEARING: September 16, 2009
TOP SECRET REASONS FOR ORDER
BY
THE HONOURABLE MADAM JUSTICE DAWSON
DATED: September
25, 2009
APPEARANCES:
Ms. B. Jackman For
Mr. Jaballah
Ms. M. Edwardh
Ms. A. Weaver
|
Mr. D. MacIntosh
Mr. J. Provart
Mr. D. Joseph
Ms. T. Kroeker
Ms. Caroline J. Carrasco
Ms. Lori Beckerman
|
For the Minister of Citizenship and
Immigration and the Minister of Public Safety and Emergency Preparedness
|
Mr. John Norris Special
Advocate
SOLICITORS OF RECORD:
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
|
For the Minister of Citizenship and
Immigration and the Minister of Public Safety and Emergency Preparedness
|
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