Date:
20110524
Docket:
A-392-10
Citation: 2011 FCA 175
CORAM: NOËL
J.A.
NADON
J.A.
EVANS
J.A.
BETWEEN:
Mahmoud
JABALLAH
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and
THE MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR
JUDGMENT
NOËL J.A.
[1]
This
is an appeal from the order of Hansen J. of the Federal Court (the Federal
Court Judge), dismissing the appellant’s application to “review” the conditions
of his release under subsection 82(4) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) and, in the alternative, to “vary”
the terms and conditions of his release under subsection 82.1(1). The Federal
Court Judge certified the following two questions:
(a) Did the learned
Federal Court Judge err in her interpretation of subsection 82.1(2) of the
IRPA?
(b) Did the learned
Federal Court Judge err in her interpretation of subsection 82.1(1) of the
IRPA?
[2]
For
the reasons which follow, I am of the view that both questions should be
answered in the negative and that the appeal should be dismissed.
BACKGROUND
[3]
The
appellant is subject to a security certificate. In April of 2007, he was
released from detention subject to terms and conditions which have since been
reviewed by the Federal Court on a regular basis (see Jaballah v. Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 379; Jaballah
v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC
9; Jaballah (Re), 2009 FC 284; Jaballah (Re), 2010 FC 507). When
the appeal was launched, the terms and conditions of the appellant’s release
were governed by the amended order issued on May 11, 2010 (the last review
order or decision).
[4]
This
last review order has since been replaced more than once, a development which
led the respondent to seek the preliminary dismissal of the appeal on grounds
of mootness. After considering the matter, we ruled that although the appeal is
moot, we should nevertheless exercise our discretion to hear it given that the
issues raised by the appellant are likely to recur and would otherwise be
elusive of appellate review.
[5]
Under
the IRPA, a person such as the appellant is entitled to apply for a review of
the reasons for continuing the conditions of his or her release provided that a
period of six months has expired since the conclusion of the preceding review:
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82. (4) A person who is released from detention under
conditions may apply to the Federal Court for another review of the reasons
for continuing the conditions if a period of six months has expired since the
conclusion of the preceding review.
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82. (4) La personne mise en liberté sous condition peut
demander à la Cour fédérale un autre contrôle des motifs justifiant le
maintien des conditions une fois expiré un délai de six mois suivant la
conclusion du dernier contrôle.
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A similar right, subject to the same time restriction,
is provided for the review of the reasons for a person’s continued detention before
a security certificate has been determined to be reasonable (subsection 82(2)),
and after (subsection 82(3)).
[6]
The
remedies which a Judge may grant upon such reviews are set out in subsection
82(5):
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82. (5) On
review, the judge
(a) shall
order the person’s detention to be continued if the judge is satisfied that the
person’s release under conditions would be injurious to national security or
endanger the safety of any person or that they would be unlikely to appear at
a proceeding or for removal if they were released under conditions; or
(b) in
any other case, shall order or confirm the person’s release from detention
and set any conditions that the judge considers appropriate.
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82. (5) Lors
du contrôle, le juge :
a) ordonne le maintien en détention
s’il est convaincu que la mise en liberté sous condition de la personne
constituera un danger pour la sécurité nationale ou la sécurité d’autrui ou
qu’elle se soustraira vraisemblablement à la procédure ou au renvoi si elle
est mise en liberté sous condition;
b) dans les autres cas, ordonne ou
confirme sa mise en liberté et assortit celle-ci des conditions qu’il estime
indiquées.
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[7]
The
person may also, at any time (i.e. without regard to the six-month
period), seek a variation of the order setting out those conditions if he or
she can show that there has been a material change in the circumstances that
led to the order :
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82.1 (1) A judge may vary an order made under subsection 82(5)
on application of the Minister or of the person who is subject to the order
if the judge is satisfied that the variation is desirable because of a
material change in the circumstances that led to the order.
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82.1 (1) Le juge peut modifier toute ordonnance rendue au titre
du paragraphe 82(5) sur demande du ministre ou de la personne visée par
l’ordonnance s’il est convaincu qu’il est souhaitable de le faire en raison
d’un changement important des circonstances ayant donné lieu à l’ordonnance.
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[8]
In
order to integrate this type of review into the six-month review cycle,
subsection 82.1(2) provides :
|
82.1 (2) For the purpose of calculating the six-month period
referred to in subsection 82(2), (3) or (4), the conclusion of the preceding
review is deemed to have taken place on the day on which the decision under
subsection (1) is made.
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82.1 (2) Pour le calcul de la période de six mois prévue aux
paragraphes 82(2), (3) ou (4), la conclusion du dernier contrôle est réputée
avoir eu lieu à la date à laquelle la décision visée au paragraphe (1) est
rendue.
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[9]
The
appellant brought the application which is the subject of this appeal on July
13, 2010. In it, he sought a review of the conditions of his release pursuant
to subsection 82(4) of the IRPA despite the fact that six months had yet to
elapse from the day on which the last review order had been issued. The
appellant took the position that he was entitled to apply for a review of his
release conditions as six months had elapsed since the “conclusion of the
preceding review” which in his view refers to the conclusion of the evidence
and submissions leading to the review decision rather than the date on which
this decision was rendered. Alternatively, if not entitled to a review because
the six-month period had yet to elapse, the appellant sought an order pursuant
to subsection 82.1(1) of the IRPA varying the conditions of his release due to
a material change in the circumstances leading to the last review order.
[10]
The
Federal Court Judge rejected the contention that the “conclusion of the
preceding review” could refer to anything other than the date on which the last
review order or the reasons therefore are issued. Accordingly, she held that
the appellant’s review application was premature as the six-month period had
yet to elapse and certified the questions set out above (para.1). She went on
to dispose of the appellant’s variation application pursuant to subsection
82.1(1) on the basis that he had failed to demonstrate a material change in the
circumstances which led to the last review order.
[11]
On
appeal, the appellant challenges both conclusions reiterating essentially the
arguments made before the Federal Court Judge as to the first conclusion and
arguing that she applied the wrong test as to the second.
ANALYSIS AND DISPOSITION
[12]
The
first issue which must be addressed is one of pure statutory construction, i.e.
whether the Federal Court Judge correctly construed section 82.1 and the phrase
“conclusion of the preceding review” in subsection 82(4). As in all such
instances, (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, para.
21):
… the words of an Act are to be read in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament.
[13]
The gist
of the argument raised by the appellant is that the absence of a deeming
provision similar to subsection 82.1(2) in relation to the other release or
detention reviews under section 82 suggests that Parliament intended the date
of “the conclusion of the preceding review” to be computed otherwise than by
reference to the date of the last review order (memorandum of the appellant,
para. 22).
[14]
With
respect, there is no basis for any such inference. The reason why the deeming
provision in subsection 82.1(2) has a limited application is that although a
variation on the basis of a material change in circumstances may be sought at
any time, i.e. without regard to the six-month limitation applicable to
reviews, it was thought logical, given the close connection between the review
and variation proceedings, to compute the six-month time period for the next
review by reference to the date of this order. This was achieved by deeming the
preceding review under subsection 82(2), (3) or (4) to have concluded on the
day on which the variation decision is made, rather than the earlier date when
the decision on the preceding review was in fact made.
[15]
The
suggestion by the appellant that “the decision” referred to in subsection
82.1(2) is not the one made under “subsection (1)”, but under subsection 82(1)
is also without foundation (memorandum of the appellant, para. 20).
[16]
In
this respect, subsection 41(3) of the Interpretation Act, R.S.C. 1985,
c. I-21, provides:
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41. (3) A
reference in an enactment to a subsection, paragraph, subparagraph, clause or
subclause shall be read as a reference to a subsection, paragraph,
subparagraph, clause or subclause of the section, subsection, paragraph,
subparagraph or clause, as the case may be, in which the reference occurs.
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41. (3) Dans un texte, le renvoi à
un élément de l’article – paragraphe, alinéa, sous-alinéa, division ou
subdivision – constitue, selon le cas, un renvoi à un paragraphe de l’article
même ou à une sous-unité de l’élément immédiatement supérieur.
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It follows that absent a clear indication to the
contrary, the reference to “the decision made under subsection (1)” in
subsection 82.1(2) is to the decision made under the provision in which the
reference occurs, i.e. subsection 82.1(1). In my view, nothing in the
IRPA displaces this interpretative presumption.
[17]
Confronted
with this, the appellant made the novel argument that this leads to an absurd
result as, in his view, the conditions of detention under subsection 82(2) or
(3) – as opposed to the conditions of release under subsection 82(4) – can
never be varied. There is no basis for this submission. For example, a
detention order which provides for limited visiting rights in order to prevent
contact with specified individuals could be varied pursuant to subsection
82.1(1) upon it being shown that the restriction is no longer necessary based
on a change in circumstances.
[18]
Finally,
there is no basis for the appellant’s suggestion that “the conclusion of the preceding
review” would ordinarily be understood as the close of evidence and the
pleadings (memorandum of the appellant, para. 22). Nothing was advanced in
support of that view. As was held by the Federal Court Judge, a proceeding is
concluded at the time the decision is rendered (reasons, para. 17).
[19]
Applying
a standard of correctness, I cannot detect any error in the Federal Court
Judge’s finding that the “conclusion of the preceding review” means the date on
which the review decision is rendered, that the six-month period set out in
subsection 82(4) runs from that date, and that the appellant’s application was
accordingly premature.
[20]
With
respect to the further conclusion that the appellant had failed to demonstrate
a “material change in circumstances” within the meaning of subsection 82.1(1),
the Federal Court Judge conducted her analysis by asking whether there had been
a change in the circumstances which led to the order sought to be varied
(reasons, paras. 41 to 49). The appellant appears to accept the correctness of
this approach (reasons, para. 24).
[21]
However,
the appellant contends that the Federal Court Judge erred by restricting her
analysis to the threat or the risk which he posed, thereby excluding any other
relevant circumstance which, if it had existed at the time and been brought to
the attention of the judge issuing the original order, might have led to a
different order (memorandum of the appellant, para. 33).
[22]
In my
respectful view, the Federal Court Judge committed no such error.
[23]
The
changed circumstances on which the application to vary was based largely arose
from the appellant’s difficulties in finding a supervisor to accompany him
during specified activities which he had to conduct under supervision. However,
the variation which he proposed was not to provide for additional supervisors
or alternative modes of supervision, but to eliminate supervision for those
activities altogether (see para. 11 of the memorandum of the appellant, and the
evidence referred to therein).
[24]
It
is clear from the reasons that the Federal Court Judge would have been willing
to entertain a variation by adding supervisors, or to explore alternatives
(reasons, para. 44). However, as she explained, supervision could not be
removed as a condition of the appellant’s release without some demonstration of
a material change in the risk to national security which he posed.
[25]
It
is apparent from the record that the appellant would not have been released from
detention without the imposition of measures capable of ensuring that this risk
was contained, and that supervision, as ordered, was designed to achieve this
result. If for any reason, supervision cannot be organized in circumstances
where the risk remains unchanged, the solution cannot possibly lie in the
removal of the supervision.
[26]
That
is the context in which the Federal Court Judge held that although other forms
of variations might be available to the appellant, he could not ask for the
removal of supervision without first addressing the risk that he posed. I can
detect no error in this regard.
[27]
I
would accordingly answer the certified questions in the negative and dismiss
the appeal with costs.
“Marc
Noël”
“I
agree
M. Nadon J.A.”
“I
agree
John M. Evans J.A.”
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