Date: 20000627
Docket: A-685-98
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
MANICKAVASAGAM SURESH
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
AND THE SOLICITOR GENERAL OF CANADA
Respondents
Heard at Toronto, Ontario, on Tuesday, June 27, 2000
Judgment delivered from the Bench at Toronto, Ontario, on Tuesday, June 27, 2000
REASONS FOR JUDGMENT OF THE COURT: LÉTOURNEAU J.A.
Date: 20000627
Docket: A-685-98
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
MANICKAVASAGAM SURESH
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
AND THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, June 26, 2000)
LÉTOURNEAU J.A.
| _. We are of the view that this appeal against an order of Teitelbaum J. by which he declined to recuse himself should be dismissed with costs: see the decision of the learned judge in Suresh v. Canada (Minister of Citizenship and Immigration (1998), 160 F.T.R. 107. |
| _. The summary of the relevant facts is as follows. On August 29, 1997, after a very lengthy hearing, Teitelbaum J. upheld a security certificate issued against the appellant. He was of the view that it was reasonable for government officials to conclude that the appellant had been engaged in terrorism and was therefore inadmissible to Canada. In coming to this conclusion, the learned judge made adverse findings with respect to the credibility of the appellant. We should add that he issued his decision promptly with reasons to follow later because the appellant was in detention and because he wanted to avoid the appellant remaining in detention unnecessarily. |
| _. Following the decision upholding the security certificate, the appellant was kept in detention. On December 23, 1997, he filed an application for an order to be released from custody. The application was heard by Teitelbaum J. On March 20, 1998, he granted the application for release, but on terms and conditions, including a $40,000 money deposit. The appellant agreed to the terms and conditions and was, therefore, subsequently released from detention. |
| _. Some months after his release, the appellant appealed against those terms and conditions on the basis that they violated the Canadian Charter of Rights and Freedoms (Charter). Our Court allowed the appeal and remitted the matter to Teitelbaum J. for a determination as to whether the appellant had waived his Charter rights and whether the terms and conditions of release were constitutional: see Suresh v. Canada, [1998] 4 F.C. 192 (F.C.A.). |
| _. On October 19, 1998, the appellant filed a complaint with the Canadian Judicial Council against Teitelbaum J. for having publicly released in the reasons for his decision of August 29, 1997 information that was confidential. One week later, i.e., on October 26, 1998, the appellant filed a Notice of Motion requesting Teitelbaum J. to recuse himself on the following grounds: |
| a) the learned judge"s prior determination of the appellant"s credibility gave rise to a reasonable apprehension of bias in further proceedings, and |
| b) the filing of the appellant"s complaint with the Canadian Judicial Council, in conjunction with ground a), would give rise to a reasonable apprehension of bias. |
| _. Teitelbaum J. found that these grounds did not constitute a basis for his recusation. |
| _. Teitelbaum J., in our view, properly concluded that the appellant had failed to raise the issue of reasonable apprehension of bias at the earliest practicable opportunity, i.e., before this Court when it heard the appeal against the terms and conditions of the release: see Canada (H.R.C.) v. Taylor, [1990] 3 S.C.R. 892, at pp. 942-43 and 971-72; In Re Human Rights Tribunal and Atomic Energy Canada, [1986] 1 F.C. 103, at pp. 113-114 (F.C.A.). |
| _. The appellant could and should have raised at that time any issue of bias detected after the issuance of the reasons for decision delivered on March 20, 1998. In addition, he could in that proceeding have raised his concerns about the propriety of remitting the matter to the same judge. He did neither and should not be permitted to do so now. |
| _. As for the complaint to the Canadian Judicial Council, the filing of such a complaint as late as 11 months after the reasons for judgment complained of were released, but only one week before the motion for recusation was made, appears to us, at best, to be self-serving and principally designated to bolster ground a). We believe, as did Teitelbaum J., that a person well informed of all these circumstances and the nature of the complaint would not conclude that they give rise to a reasonable apprehension of bias. Indeed, counsel for the appellant concedes that the complaint by itself could not give rise to a reasonable apprehension of bias. |
| _. There is, in our view, another reason which justifies the dismissal of this appeal. This Court, as a matter of efficiency, remitted the matter to Teitelbaum J. because he was the judge who had imposed the conditions and terms of release after 50 days of hearings on the reasonableness of the security certificate and the filing of additional evidence and material on the application for release. He was aware of all the circumstances surrounding the application for release and the role played by the appellant and his counsel with respect to the terms and conditions of release. At page 203 of the decision, McDonald J.A., speaking for the Court, wrote: |
| I am of the view that the most appropriate course of action is to send the Charter issues back to him for consideration as he has the benefit of being the only one to have before him a full factual record and of having heard any relevant testimony on this issue. |
| _. The appellant could and should have sought leave to appeal that decision if he felt that it was an error to remit the matter to Teitelbaum J.. He did not and there are no new facts since the decision of this Court which justify interfering with it and the order which followed. |
| _. The appeal will be dismissed with costs. |
"Gilles Létourneau"
J.A.
| _. FEDERAL COURT OF CANADA |
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: MANICKAVASAGAM SURESH |
Appellant
| THE MINISTER OF CITIZENSHIP & IMMIGRATION AND THE SOLICITOR GENERAL OF CANADA |
Respondents
DATE OF HEARING: TUESDAY, JUNE 27, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: LÉTOURNEAU J.A. |
Delivered at Toronto, Ontario on Tuesday, June 27, 2000
APPEARANCES: Mr. Ronald Poulton
Mr. Donald McIntosh and
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
| Deputy Attorney General of Canada |
FEDERAL COURT OF APPEAL
Date: 20000627
Docket: A-685-98
BETWEEN:
Appellant
| THE MINISTER OF CITIZENSHIP & IMMIGRATION AND THE SOLICITOR GENERAL OF CANADA |
Respondents
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