Date: 20080619
Docket: DES-4-08
Citation: 2008 FC 765
IN THE MATTER OF a certificate pursuant to
subsection 77(1) of the Immigration and Refugee Protection Act (IRPA);
IN THE MATTER OF the referral of this
certificate to the Federal Court of Canada pursuant to subsection 77(1) of the
IRPA;
AND
IN THE MATTER OF Adil Charkaoui
REASONS FOR
ORDER
Lemieux J.
Introduction and
background
[1]
These
reasons follow the order that I signed on June 12, 2008, dismissing the motion
by Adil Charkaoui (the applicant) for a temporary stay of the review of
the reasonableness of the security certificate issued against him on February
22, 2008 (the certificate), by the Minister of Public Safety and Emergency
Preparedness and the Minister of Citizenship and Immigration (the Ministers).
[2]
The
certificate was signed by the Ministers and referred to the Federal Court under
subsection 77(1) of the Immigration and Refugee Protection Act, as
amended by chapter 3 of the Statutes of Canada 2008, assented to on February 14,
2008 (the Act).
[3]
Chapter
3 of the Statutes of Canada 2008 entitled An Act
to Amend the Immigration and Refugee Protection Act (Certificate and Special
Advocate) and to Make a Consequential Amendment to Another Act was adopted by the Parliament of Canada following the decision
of the Supreme Court of Canada dated February 23, 2007, in Charkaoui v.
Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, which determined
that the provisions of the Act regarding the procedure for reviewing a
security certificate were invalid. At paragraphs 139 and 140, the Chief
Justice, on behalf of the Court, made the following findings on the invalidity
and the suspension of the judgment:
139 The first is that
s. 78(g) allows for the use of evidence that is never disclosed to the
named person without providing adequate measures to compensate for this
non-disclosure and the constitutional problems it causes. It is clear
from approaches adopted in other democracies, and in Canada itself in other
security situations, that solutions can be devised that protect confidential
security information and at the same time are less intrusive on the person’s
rights. It follows that the IRPA’s procedure for the
judicial confirmation of certificates and review of detention violates
s. 7 of the Charter and has not been shown to be justified under
s. 1 of the Charter. I would declare the procedure to be
inconsistent with the Charter, and hence of no force or effect.
140 However,
in order to give Parliament time to amend the law, I would suspend this
declaration for one year from the date of this judgment. If the government
chooses to go forward with the proceedings to have the reasonableness of Mr.
Charkaoui’s certificate determined during the one-year suspension period, the
existing process under the IRPA will apply. After one year, the certificates
of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates
have been deemed reasonable) will lose the “reasonable” status that has been
conferred on them, and it will be open to them to apply to have the certificates
quashed. If the government intends to employ a certificate after the
one-year delay, it will need to seek a fresh determination of reasonableness
under the new process devised by Parliament. Likewise, any detention review
occurring after the delay will be subject to the new process.
[My emphasis.]
[4]
The
certificate signed by the Ministers reads as follows:
[translation]
We hereby certify that we
believe, based on the security intelligence that we have, that Adil CHARKAOUI, a
permanent resident, is inadmissible on security grounds under paragraphs 34(1)(c),
34(1)(d) and 34(1)(f) of the Immigration and Refugee Protection Act.
[5]
Paragraph
1 of the public summary of the security intelligence report concerning Adil Charkaoui
(the report) dated February 22, 2008, prepared by the Canadian Security
Intelligence Service (the Service) for the Ministers, under the heading “Summary
of Recommendation” reads:
[translation]
1.
The
Canadian Security Intelligence Service (the Service) believes that Adil CHARKAOUI
(CHARKAOUI), a permanent resident of Canada born July 3, 1973, in
Mohammedia, Morocco, is inadmissible on security grounds under subsections 34(1)(c),
34(1)(d) and 34(1)(f) of the Immigration and Refugee Protection Act (the
IRPA).
[6]
Subsections
34(1)(c), 34(1)(d) and 34(1)(f) of the Act provide:
|
34. (1) A permanent resident or
a foreign national is inadmissible on security grounds for
. .
.
(c)
engaging in terrorism;
(d)
being a danger to the security of Canada;
. .
.
(f)
being a member of an organization that there are reasonable grounds to
believe engages, has engaged or will engage in acts referred to in paragraph
(a), (b) or (c).
|
|
34. (1) Emportent
interdiction de territoire pour raison de sécurité les faits suivants:
…
(c)
se livrer au terrorisme;
d)
constituer un danger pour la sécurité du Canada;
…
f)
être membre d’une organisation dont il y a des motifs raisonnables de croire
qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
|
[7]
Paragraphs
3 and 4 of the report, under the heading “The Danger” read as follows:
[translation]
3. Based
on the Service’s investigation and analysis, there are reasonable grounds to
believe that CHARKAOUI
(a) was, is or
will be a member of an organization that the Service has reasonable grounds to
believe engages, engaged or will engage in acts of terrorism;
(b) is engaging, has
engaged or will engage in terrorism;
(c) constitutes, has
constituted or will constitute a danger to the security of Canada.
4.
Specifically,
the Service believes that CHARKAOUI
(a) is or was a member of
the Al Qaida network;
(b) participated in
training camps in Afghanistan and/or Pakistan;
(c) had Islamic extremists
among his circle of contacts;
(d) discussed plans for
terrorist attacks;
(e) engaged in criminal
activities to provide financial support to the jihad;
(f) was a
sleeper agent for the Al Qaida network.
The requested stay
[8]
It
is important to understand that the stay of proceedings requested by Mr. Charkaoui
is limited in scope. He is not requesting a permanent stay of the proceedings
prescribed by the Act following the issuance of the security certificate against
him. He is not asking for a freeze of any other motion that he would be free to
file such as a motion for a declaration that the new Act is
unconstitutional, a motion to set aside his detention conditions or preliminary
motions before the process to review the certificate. He only wants this Court
to order a stay of the procedure for reviewing the reasonableness of this
certificate until the Supreme Court of Canada renders a final judgment in
docket 31597, Adil Charkaoui v. Minister of Citizenship and Immigration et
al. The Court heard this case on January 31, 2008, and reserved judgment.
[9]
Docket
31597 progressed towards the Supreme Court of Canada in the following way:
1. On May 16,
2003,
the first security certificate was issued against Mr. Charkaoui. This certificate
certified that he was inadmissible on security grounds because he was a person referred
to in subsections 34(1)(c), 34(1)(d) and 34(1)(f) of the Act. Concurrently, the
Ministers authorized a warrant for his arrest and detention.
2. The
designated judge had not determined the reasonableness of the first certificate
before the Supreme Court of Canada ruled on February 23, 2007, that Part 9 of
the Act was invalid. No decision on the reasonableness had been made for
these reasons: four detention reviews; two protection applications; his motion
for a declaration of unconstitutionality and other motions or appeals on his
part.
3. As part of
the fourth detention review hearing, Mr. Charkaoui brought a two-pronged motion:
the first asking that the certificate be quashed and that he be released (a
permanent stay of proceedings) and the other, in the alternative, asking for an
order excluding the summary of the additional information about the new
sensitive evidence filed on January 6, 2005.
4. The motion
for a stay of the procedure for determining the reasonableness of the
certificate was based on the fact that the Service no longer had in its possession
the notes of the interviews that the Service had had with Mr. Charkaoui. The
Service had destroyed those notes in accordance with its internal policy of erasing
notes and recordings once the information they contain is incorporated into a
report or a summary. Counsel for Mr. Charkaoui argued before the designated
judge, Mr. Justice Simon Noël, that this policy breached the principle of
procedural fairness in that neither the Ministers nor Mr. Charkaoui could
benefit from all the information collected during the interviews, including
information favourable to Mr. Charkaoui, and that this infringed section 7 of
the Canadian Charter of Rights and Freedoms. The alternative request was
based on the argument that the late disclosure of new facts (or allegations) prejudiced
Mr. Charkaoui.
[10]
In
a decision dated February 1, 2005 (Reference 2005 FC 149), Justice Noël dismissed
both prongs of the motion. His conclusion on the first prong reads as follows:
[14] The
Court has analyzed Mr. Charkaoui's submissions from every angle but the
conclusion sought is not the one adopted. There is no infringement of
procedural fairness that cannot be remedied (if such is the case). Mr.
Charkaoui may testify about these interviews and communicate his version. This
would be the version that would most adequately reflect the interviews. So
there can be no harm in such circumstances and if there was an infringement of
procedural fairness it would be neutralized.
[15] As
mentioned at the hearing, it is inconceivable to the Court that it would vacate
the certificate on the basis of a one-page document, taking into account both
the very voluminous overall evidence that has been disclosed and the evidence
that is protected for national security purposes. It would not be in the
interest of justice to make such a decision. Furthermore, a careful reading
of the evidence (both public and protected) indicates that the facts and
allegations at the basis of the certificate and the detention do not originate
in any way in the summaries of interviews but are instead elsewhere in the
evidence. Of course, these summaries are part of the evidence but they are
not necessary in order to demonstrate directly or indirectly the foundation of
the facts and the allegations on which the proceeding is based.
[My emphasis.]
[11]
As
for the exclusion of the new evidence, Justice Noël found that the evidence was
authorized by the Act and that the appropriate remedy for its late disclosure was
an adjournment. He also decided that the determination on the unreliability and
lack of credibility of these new facts would not be made until all the evidence
had been heard. Given his findings, Justice Noël was of the view that it was
unnecessary to address Mr. Charkaoui’s other arguments.
[12]
Mr.
Charkaoui appealed. The Federal Court of Appeal dismissed the appeal on June 6,
2006 (see Adil Charkaoui v. Minister of Citizenship and Immigration,
2006 FCA 206). Mr. Justice Pelletier, on behalf of the Court of
Appeal, was of the view that Mr. Charkaoui “. . . has failed to convince me
that his right to procedural fairness was breached or, if there was such a
breach, that it would entitle him to a stay of the inadmissibility proceedings.
The request that the new allegations not be admitted by the designated judge
must also be dismissed, in view of the fact that the Act expressly provides
this possibility.”
[13]
At
paragraph 27 of his reasons, Justice Pelletier dealt with an argument that had
not been made before Justice Noël—the impact of section 12 of the Canadian
Security Intelligence Service Act as a factor justifying its internal
policy of destroying interview notes once the summary is prepared. He wrote: “I
must say in passing that I find the justification proffered by the Ministers
for this CSIS policy rather unconvincing.” However, he determined that the Service’s
application of this policy did not warrant granting a stay of the proceedings
instituted against Mr. Charkaoui because he was
unable to establish harm resulting from a possible breach. Justice Pelletier
wrote the following in paragraphs 32, 33, 34 and
35 of these reasons:
[32] In the case at
bar, Mr. Charkaoui alleges that the timely disclosure of the interview summary
could have influenced the decision of the Ministers and the decisions of the
designated judge. He sees therein a prejudice that entitles him to the relief
he claims. The very description of this argument reveals its speculative
nature.
[33] Mr. Charkaoui submits that he
was prejudiced by the destruction of the interview notes because the designated
judge was unable to verify the concordance between what he said in his
testimony and what allegedly appeared in the notes of the interviews. Even
conceding that Mr. Charkaoui could have been prejudiced by the absence of these
notes, it must also be acknowledged that he may have derived some advantage
from the fact that their absence shielded him from cross‑examination
relating to discrepancies between his testimony and his prior statements.
[34] It cannot be
assumed that the summaries are not consistent with the notes that were
destroyed, or vice versa. Insofar as the designated judge is satisfied with the
reliability of the evidence that he has, whether as a result of its origin from
independent sources or because of its apparent corroboration, the absence of
interview notes, even notes that might be relevant, does not affect the
reliability of this evidence on the record, particularly the evidence that is
extrinsic to the interviews with Mr. Charkaoui.
[35] Wherever the
interview notes are liable to throw some light on dubious evidence, their
absence is a factor that the designated judge must consider in his assessment
of this evidence. It cannot be assumed that the designated judge will not
discharge his duties pertaining to the assessment of the probative value of the
evidence, as he must.
[14]
On
September 5, 2006, Mr. Charkaoui applied to the Supreme Court of Canada for
leave to appeal, which was granted on March 15, 2007.
Scope of the requested
stay
[15]
At
the beginning of the hearing of the motion on June 11, 2008, I asked counsel
for Mr. Charkaoui at what stage in the process for determining the
reasonableness of the certificate would the stay apply to.
[16]
This
question was important because there are a number of steps in the review process,
and the 2008 amendment to the Act mandated a special advocate “to protect
the interests of the permanent resident or foreign national in a proceeding
under any of sections 78 [determination of the reasonableness of the
certificate] and 82 to 82.2 [review of the reasons for the person’s continued
detention].” Moreover, the special advocate system was identified by the
Supreme Court of Canada in its judgment of February 23, 2007, in Charkaoui,
above, as a less intrusive alternative to protect sensitive information while giving
fair treatment to individuals who are subject to the procedures prescribed by
the Act for determining whether a certificate is reasonable.
[17]
Mr.
Charkaoui was not the only person against whom a new security certificate was
issued on February 22, 2008. This was also the case with Messrs. Almrei,
Harkat, Jaballah and Mahjoub. It was clear that Court resources had to be
coordinated, but at the same time, the Court had to comply with the mandatory
language of subsection 83(1)(a) of the 2008 amendment to the Act: “[T]he judge
shall proceed as informally and expeditiously as the circumstances and
considerations of fairness and natural justice permit.” For these reasons, the
Chief Justice of the Federal Court decided that all the new proceedings for
reviewing the new security certificates would be specially managed. The Chief
Justice and Justice Simon Noël have been assigned as the case management judges
for each of those cases. Discussions will be conducted via consolidated conferences
between the representatives of the five individuals and the Court.
[18]
One
of the key elements in managing proceedings for determining the reasonableness
of security certificates is the preparation of a litigation plan for each
proceeding that sets out the following parameters:
- the appointment of
a special advocate;
- a period of
consultation between the special advocate and the person who is the
subject of the security certificate;
- use of the same
information for the decision on the reasonableness of the certificate and
the questions concerning the detention or the release conditions;
- a period of time
for the special advocate to review the confidential information;
- provision for the
establishment of a schedule for the beginning (end of summer or beginning
of fall) and the end of the public hearings and the closed hearings (November/December 2008);
- a list of all the
applications and motions pertaining to the reasonableness of the certificate,
the detention or the release conditions, including the questions about the
constitutionality of any provision under section 9 or any other matter.
Test for granting a stay
of proceedings
[19]
Mr.
Charkaoui invokes subsection 50(1)(b) of the Federal Courts Act, which
permits this Court to grant an order temporarily staying the review of the
reasonableness of the certificate. This subsection reads as follows:
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50. (1) The Federal Court
of Appeal or the Federal Court may, in its discretion, stay proceedings in
any cause or matter
. .
.
(b) where for any other reason it is in
the interest of justice that the
proceedings be stayed.
[My emphasis.]
|
|
50. (1) La Cour d'appel
fédérale et la Cour fédérale ont le pouvoir discrétionnaire de suspendre
les procédures dans toute affaire:
…
b) lorsque, pour quelque autre raison,
l’intérêt de la justice l’exige.
[Je souligne.]
|
[20]
The
parties agree that, in order to obtain a stay of proceedings under subsection
50(1)(b) of the Federal Courts Act, Mr. Charkaoui must satisfy each branch
of the test laid down by the Supreme Court of Canada in Manitoba (Attorney
General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 and R.J.R. –
Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311,
specifically:
- There must be a
serious question to be tried;
- It must be
determined whether the applicant would suffer irreparable harm if the
application were refused;
- An assessment must
be made as to which of the parties would suffer greater harm from the
granting or refusal of the remedy pending a decision on the merits.
[21]
R.J.R.
–
Macdonald Inc., above, describes the three branches in detail.
1. Serious issue
[22]
Justices
Sopinka and Cory wrote at page 337:
49
What
then are the indicators of a “serious question to be tried”? There are no
specific requirements which must be met in order to satisfy this test. The
threshold is a low one. The judge on the application must make a preliminary
assessment of the merits of the case. The decision of a lower court judge on
the merits of the Charter claim is a relevant but not necessarily
conclusive indication that the issues raised in an appeal are serious: see Metropolitan
Stores, supra, at p. 150. Similarly, a decision by an appellate
court to grant leave on the merits indicates that serious questions are raised,
but a refusal of leave in a case which raises the same issues cannot
automatically be taken as an indication of the lack of strength of the merits.
50 Once
satisfied that the application is neither vexatious nor frivolous, the motions
judge should proceed to consider the second and third tests, even if of the
opinion that the plaintiff is unlikely to succeed at trial. A prolonged
examination of the merits is generally neither necessary nor desirable.
2. Irreparable harm
[23]
Justices
Sopinka and Cory wrote the following at page 341 of their reasons:
58 At this stage the
only issue to be decided is whether a refusal to grant relief could so
adversely affect the applicants’ own interests that the harm could not be
remedied if the eventual decision on the merits does not accord with the result
of the interlocutory application.
59
“Irreparable”
refers to the nature of the harm suffered rather than its magnitude. It is harm
which either cannot be quantified in monetary terms or which cannot be cured,
usually because one party cannot collect damages from the other. Examples
of the former include instances where one party will be put out of business by
the court's decision (R.L. Crain Inc. v. Hendry, (1988), 48 D.L.R.
(4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or
irrevocable damage to its business reputation (American Cyanamid, supra);
or where a permanent loss of natural resources will be the result when a
challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, 1985 CanLII 154 (B.C.C.A.), [1985] W.W.R. 577
(B.C.C.A.)). The fact that one party may be impecunious does not automatically
determine the application in favour of the other party who will not ultimately
be able to collect damages, although it may be a relevant consideration (Hubbard
v. Pitt, [1976] Q.B. 142 (C.A.)).
3.
Balance of convenience and the public interest
[24]
At
page 346, Justices Sopinka and Cory concluded as follows regarding the third branch
of the test:
71
In our
view, the concept of inconvenience should be widely construed in Charter
cases. In the case of a public authority, the onus of demonstrating irreparable
harm to the public interest is less than that of a private applicant.
This is partly a function of the nature of the public authority and partly a
function of the action sought to be enjoined. The test will nearly always be
satisfied simply upon proof that the authority is charged with the duty of
promoting or protecting the public interest and upon some indication that the
impugned legislation, regulation, or activity was undertaken pursuant to that
responsibility. Once these minimal requirements have been met, the court
should in most cases assume that irreparable harm to the public interest would
result from the restraint of that action.
72 A
court should not, as a general rule, attempt to ascertain whether actual harm
would result from the restraint sought. To do so would in effect require
judicial inquiry into whether the government is governing well, since it
implies the possibility that the government action does not have the effect of
promoting the public interest and that the restraint of the action would
therefore not harm the public interest. The Charter does not give the
courts a licence to evaluate the effectiveness of government action, but only
to restrain it where it encroaches upon fundamental rights. [My emphasis.]
[25]
Applying
the principles in R.J.R. – Macdonald Inc., above, Justices Cory and
Sopinka wrote the following at page 350:
85
Among
the factors which must be considered in order to determine whether the granting
or withholding of interlocutory relief would occasion greater inconvenience are
the nature of the relief sought and of the harm which the parties contend they
will suffer, the nature of the legislation which is under attack, and where the
public interest lies.
Mr. Charkaoui’s
submissions
[26]
In
response to the Court’s question regarding what stage of the review process the
stay would apply to, his counsel clearly indicated that the process of
appointing a special advocate could continue as well as the motions that Mr.
Charkaoui has already filed or anticipates filing in the near future: (1) application
for a declaration that the 2008 amendments to the Act are unconstitutional; (2)
his interlocutory motions for disclosure, particulars and arguments in support;
and (3) his motion to set aside or review the conditions of his release.
[27]
His
counsel gave an ambiguous answer as to whether the special advocate could begin
to consult with Mr. Charkaoui before reviewing the sensitive evidence. At
first, she replied that the consultation could proceed, but she later informed
the Court that the consultation would of necessity be imperfect because it was
impossible to develop a specific approach on the evidence submitted to the
designated judge without knowing the parameters of the Supreme Court of Canada
judgment that has been reserved. On the other hand, she was of the view that
the special advocate for the review of the detention conditions should be
someone other than the advocate who will be appointed for the review of the
reasonableness of the certificate.
[28]
In
short, I believe that the stay sought by Mr. Charkaoui encompasses an almost
total freeze of all the steps that must be taken to determine whether the
certificate is reasonable.
[29]
With
respect to the first branch, Mr. Charkaoui emphasizes that it requires a preliminary
interim assessment of the merits of the case; his counsel submits that the
substance of the case for the second certificate is the same as for the
first—the allegations against Mr. Charkaoui are the same. This link between the
two certificates means that the Supreme Court decision will necessarily have an
impact on the conduct of this proceeding and that, under these circumstances,
it would be prudent to await this judgment before continuing.
[30]
As
for the second branch, Mr. Charkaoui argues that he will suffer
irreparable harm if the steps following the appointment of the special advocate
are not stayed until the Supreme Court of Canada renders its judgment on the
application for a permanent stay of the proceedings in the previous docket.
[31]
Mr.
Charkaoui’s submissions on the irreparable harm branch are based on the
following propositions: (1) Neither Justice Noël nor the Federal Court of
Appeal addressed the real issues in dispute that are before the Supreme Court
of Canada because they were not aware of the extent of the Service’s policy on
the destruction of interview notes and tape or video recordings; (2) The
Service’s practices and policies pertaining to investigations and the management
of information and evidence have irremediably tainted the investigation on
which the certificate issued against Mr. Charkaoui was based to the point where
they are inconsistent with the Ministers’ duty to retain and disclose evidence;
(3) these practices and policies of the Service irremediably violated Mr. Charkaoui’s
right to procedural fairness; (4) the Service’s behaviour in this regard constitutes
an abuse of process that contaminates the new certificate; (5) continuing the
review of the reasonableness of the certificate would needlessly perpetuate the
constitutional violations alleged by Mr. Charkaoui and may constitute a further
infringement of his rights.
[32]
I
summarize the irreparable harm that counsel for Mr. Charkaoui has identified:
- He needs the teachings
that the Supreme Court of Canada will give in its judgment that is
currently reserved, in order to guide and prepare his defence with respect
to the evidence, which was the basis of the investigation;
- A final decision on
the reasonableness of the certificate may make the Supreme Court of
Canada’s decision moot, with the result that he may lose the fruits of a
favourable judgment;
- He will be
compelled to make certain choices: to testify or not and other repercussions
on his defence;
- His reputation will
be irreparably damaged because he will not be able to be fully compensated
in damages;
- Financial loss and
stress of a trial.
[33]
With
respect to the third branch, counsel for Mr. Charkaoui submits that Mr.
Charkaoui will suffer greater harm depending on whether a stay is granted or
refused pending the decision of the Supreme Court of Canada. She reiterates the
harm that Mr. Charkaoui will suffer and argues that the Ministers will not be
prejudiced if the stay is granted. On the contrary, she maintains that if the
Ministers continue the proceeding, they risk making their own errors worse, and
it is in their real interests that the law be clarified regarding the legality and
constitutionality of their actions and those of the Service before allowing
them to continue the proceeding. This is also in the best interests of justice.
Referring to R.J.R. – Macdonald Inc., above, she submits that the
requested stay is similar to an exemption case that does not affect anyone
other than Mr. Charkaoui and, consequently, the public interest is not
infringed.
Analysis and conclusions
[34]
On
June 12, 2008, I made an order dismissing Mr. Charkaoui’s motion on the grounds
that he had not persuaded me that he would suffer irreparable harm if the stay
order were not granted and that, under the circumstances, if the stay were
granted, the balance of convenience favoured the Minister. I will explain.
(1) Serious
question
[35]
At
the hearing of the motion, I advised the parties that I was satisfied that there
was a serious question, given that the Supreme Court of Canada granted leave to
appeal in docket 31597, that the appeal was heard and that judgment has been
reserved since the end of January 2008. In
R.J.R. – Macdonald
Inc., above, the Supreme Court of Canada held that “a decision by an
appellate court to grant leave on the merits indicates that serious questions
are raised . . . ”. Mr. Charkaoui demonstrated one of
the serious questions by establishing a link (same allegations) between the
first certificate and this one, notwithstanding the fact that no decision was
made on the reasonableness of the first certificate and that, among the transitional
provisions of the 2008 amendment to the Act, section 7(1) states “A proceeding
related to the reasonableness of a certificate . . . is terminated on the
coming into force of this Act.” (In French “Dès l’entrée en vigueur de la
présente loi, il est mis fin à toute instance relative au caractère raisonnable
du certificate déposé à la Cour fédérale au titre du paragraphe 77(1) de la Loi.”).
(2) Irreparable
harm
[36]
The
onus is on Mr. Charkaoui to demonstrate that he will suffer irreparable harm if
the stay of proceedings is not granted. The jurisprudence establishes that “the
evidence as to irreparable harm must be clear and not speculative” [and that] it is necessary for the evidence to support a finding that
the applicant would suffer irreparable harm, see Centre Ice Ltd. v. National
Hockey League, [1994] 166 N.R. 44 (F.C.A.). The evidence of
irreparable harm must be “clear and not speculative”, see Nature Co. v.
Sci-tech Educational Inc., [1992] 141 N.R. 363 (F.C.A.)).
[37]
In
Canadian National Railways v. Leger, [2000] F.C.J. No. 243, my colleague,
Madam Justice Hansen, adopted the test of “the evidence as to irreparable
harm must be clear and not speculative”; this was a public law case in which Canadian National (CN) sought a stay to prevent the
Canadian Human Rights Tribunal from examining the discrimination complaint
filed by Mr. Leger until the Court disposed of CN’s application for
judicial review of the decision by the Human Rights Commission to refer the
complaint to the Tribunal.
[38]
Justice Hansen determined two points that are relevant to this
dispute: the demands of litigation and the possibility of success on the
judicial review application.
[39]
On the first point, she wrote at paragraph 15 of her reasons:
15 In a number of cases, this Court has held that the demands
of litigation, including inconvenience to parties and witnesses, stress and
the inability to recover costs are not sufficient to meet the irreparable harm
branch of the test where they are incurred in the ordinary course of litigation.
I have no indication that CN will incur costs or hardship outside the
ordinary course of litigation, and therefore, it has not established
irreparable harm for the purposes of this stay application. Of particular
relevance in this regard is Reed J.'s holding in ICN Pharmaceuticals Inc. v.
Canada
(Patented Medicine Prices
Review Board):
I have not been persuaded
that the circumstances are such that I should stay the proceedings. While
unnecessary time and costs will have been expended if the proceeding goes ahead
and it is ultimately decided that the Board is without jurisdiction, this is
more a matter of inconvenience than irreparable harm . . .
[40]
Regarding
the possibility of success on the application for judicial review, my colleague’s
view was as follows:
16 Reed J.'s holding in ICN Pharmaceuticals Inc., supra
is equally applicable to CN's final submission on irreparable harm. CN
claims it will be the victim of abuse of process and procedural unfairness
should the tribunal hearing proceed as scheduled prior to the hearing of the
judicial review application. In its submission, once the inquiry has been
allowed to proceed, the judgment ultimately rendered on the judicial review
application will be ineffective, untimely, and will therefore result in
irreparable harm. I agree with counsel for the Respondent that this is a
circular argument. It assumes that which still remains to be decided on
the judicial review application. In any event, as Reed J. has noted in ICN
Pharmaceutical Inc., supra, even in the event of a successful judicial
review application, the applicant's participation in the inquiry will have
constituted an inconvenience, not irreparable harm. At issue is the actual
concrete harm to be suffered by the applicant, and CN has not established that
it would suffer irreparable harm warranting a stay of proceedings.
[41]
The
case law relied on by my colleague Justice Hansen is long-standing and
consistent. I cite the following paragraph from Mr. Justice McNair’s judgment
in Varnam v. Canada (Minister of National
Health and Welfare), [1987] F.C.J. No. 511:
A stay of proceedings is never granted as
a matter of course. The matter is one calling for the exercise of a judicial
discretion in determining whether a stay should be ordered in the particular
circumstances of the case. The power to stay should be exercised sparingly and
a stay will only be ordered in the clearest cases. In an order to justify a
stay of proceedings two conditions must be met, one positive and the other
negative: (a) the defendant must satisfy the court that the continuance of the
action would work an injustice because it would be oppressive or vexatious to
him or would be an abuse of the process of the court in some other way; and (b)
the stay must not cause an injustice to the plaintiff. On both the burden of
proof is on the defendant. Expense and inconvenience to a party or the prospect
of the proceedings being abortive in the event of a successful appeal are not
sufficient special circumstances in themselves for the granting of a stay: Communications
Workers of Canada v. Bell Canada, [1976] 1 F.C. 282 (T.D.); Weight
Watchers Int'l Inc. v. Weight Watchers of Ontario Ltd. (1972), 25 D.L.R.
(3d) 4I9 (F.C.T.D.); Baxter Travenol Laboratories Ltd. v. Cutter (Canada),
Ltd. (1981), 54 C.P.R. (2d) 218 (F.C.T.D.).
[42]
Canadian
Pacific Railway Co. v. Canadian Transportation Agency, 2004 FCA
347 is to the same effect, as is the decision of my colleague, Mr. Justice
Kelen, in Canadian Imperial Bank of Commerce v. Eve Kollar and another,
2003 FC 985, who wrote at paragraph 8:
8 The jurisprudence makes clear that the applicant has failed
to meet the second stage of the test. The applicant argues it “ought not to be
put to major expense and effort to prepare for and defend itself before the
Tribunal panel, with its attendant negative publicity and stigmization” [sic].
Similar arguments have been rejected in the past by this Court as insufficient
to constitute irreparable harm: Bell Canada v.
Communications, Energy and Paperworks Union (1997), 127
F.T.R. 44, per Richard J. (as he then was) at paragraphs 37 to 41. Special
circumstances must be present for the Court to treat costs as irreparable harm
and there is no evidence that such circumstances are present in this case. It
is well settled that the inability of the applicant to recover costs from the
Canadian Human Rights Tribunal Inquiry does not constitute irreparable harm.
[43]
Last,
I cite Mr. Justice Létourneau’s decision in Adil Charkaoui v. Minister of
Citizenship and Immigration and Solicitor General of Canada, 2004 FCA 319, dated
September 24, 2004, in which the Federal Court of Appeal dismissed Mr.
Charkaoui’s motion for an order temporarily suspending the hearings on the
reasonableness of the May 2003 certificate pending the hearing and disposition
by the Court of Appeal of the appeal of Mr. Justice Noël’s decision on the
constitutionality of the sections of the Act that deal with the review of
certificates. In support of his motion, Mr. Charkaoui argued that his appeal
could become ineffective or unnecessary if the temporary stay was not ordered.
At the time, Mr. Charkaoui was in detention.
[44]
Justice
Létourneau was not persuaded that Mr. Charkaoui had demonstrated irreparable
harm. His view was that the damage to Mr. Charkaoui’s reputation “can be
compensated monetarily” and that his appeal would not be ineffective or
unnecessary because “[i]f the process followed by the Federal Court which led
to the decision on the reasonableness of the certificate were to be quashed by
our Court on the grounds that it was unconstitutional, I find it difficult to
see how that decision could stand if its foundation were to crumble.”
[45]
In view of the case law analyzed above, I must find that Mr.
Charkaoui has not demonstrated that he will suffer irreparable harm if the stay
of proceedings is not granted.
[46]
First, the consequences of the judgment that will be rendered by
the Supreme Court of Canada and its impact on the
review of the reasonableness of the new certificate lies in the realm of pure
speculation, in my view. Who will succeed, which questions will be answered,
what findings of fact and law will be made, how the judgment will apply to the
new certificate and what relief, if any, will be ordered, are all unknown.
[47]
Second, the alleged risk of losing the benefits of a favourable
decision by the High Court is also speculative and unrealistic.
[48]
Third, the case law teaches that the other harm alleged by Mr.
Charkaoui is not irreparable.
[49]
Fourth, it would be imprudent for this Court to now tie the hands
of the judge designated to conduct the review proceeding, which will respond fairly
and completely to the problems, if any, created by the Supreme Court of Canada
reserving or delivering its judgment in docket 31597.
3. Balance
of convenience and interests of justice
[50]
After reviewing the relevant factors, including the nature of the
Act and the public interest, I have no doubt that the balance of convenience, which
includes an assessment of the interests of justice, clearly favours the
Ministers. I will list these statutory and jurisprudential factors:
1.
“The
objectives as expressed in the IRPA indicate an intent to prioritize
security.” (Medovarski v. Canada (Minister of
Citizenship and Immigration), [2005] 2 S.C.R. 539)
2.
Subsection
83(1)(a), above, is similar to “the mandatory
provision in subsection 9(2) of the Competition Tribunal Act that the
hearing of the application should be held informally and expeditiously as
circumstances and conditions of fairness would allow.” Chief Justice
Isaac of the Federal Court of Appeal in Canada (Director of
Investigation and Research) v. D & B Companies of Canada Ltd., [1994] F.C.J.
No. 1504 dismissed a motion for a stay of the proceedings before the
Competition Tribunal pending the hearing and disposition in the Court of Appeal
of D & B’s appeal. The Chief Justice concluded that the balance of
convenience favoured the Director of Investigation and Research on the ground
that he “was influenced to a great extent by the
mandatory provision . . . ”.
3.
Justice
Létourneau was of the same view in his decision of September 24, 2004, above, where
he wrote at paragraph 19 that “the interest of justice - including the interest
to [sic] having a review of the lawfulness of his departure order -
demands that the administration of procedures be somewhat expeditious, if not
assuredly expeditious. I cannot, by staying proceedings in Federal Court,
thwart an efficient and effective coordination of two series of proceedings
before two different courts made in the best interest of the administration of
justice.” In the same vein, see the decision of Justice
Richard, now Chief Justice of the Federal Court of Appeal, in Bell Canada v.
Communications, Energy and Paperworks Union, [1997] F.C.J. No. 207 where he
dismissed a motion for a stay of proceedings before the Canadian Human Rights
Tribunal pending the final disposition of Bell Canada’s judicial review
applications. In his view, the balance of convenience favoured having
complaints of discrimination prohibited in a public statute dealt with
expeditiously.
4.
Last,
I cite the Supreme Court of Canada decision in Canada (Minister of
Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391. Mr.
Tobiass had been granted a permanent stay of the Federal Court proceedings to
revoke his citizenship. The Federal Court of Appeal and the Supreme Court determined
that a permanent stay of proceedings was not an appropriate remedy in the
circumstances.
The Supreme Court held at paragraph 109:
109 On the other
side of the balance, society’s interest in having a final decision on the
merits is obvious. It is imperative that the truth should come to
light. If it is not proven that the appellants did the things they are
said to have done, then they will retain their citizenship. But if some
or all of the alleged acts are proven then the appropriate action must be
taken. What is at stake here, in however small a measure, is Canada’s reputation as a responsible member
of the community of nations. In our view, this concern is of the highest
importance.
.
[51]
For
all these reasons, the motion for a stay of proceedings is dismissed.
“François Lemieux”
______________________________
Judge
Ottawa,
Ontario
June
19, 2008
Certified
true translation
Mary
Jo Egan, LLB
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