Date: 20081126
Docket: A-51-08
Citation: 2008 FCA
367
Present: LÉTOURNEAU J.A.
IN THE MATTER OF a certificate
under subsection 77(1) of the
Immigration and Refugee
Protection Act,
SIGNED BY THE
Minister of Immigration and
the Solicitor General of Canada (Ministers)
S.C. 2001, c. 27 (IRPA);
IN THE MATTER OF the referral of this
certificate to the Federal Court of Canada
under subsection 77(1) and
sections 78 and 80 of the IRPA;
IN THE MATTER OF a motion to quash
subpoenas duces tecum filed by
Joël-Denis Bellavance and Gilles Toupin
and the
objections resulting from questions
raised on an examination on affidavit;
AND IN THE MATTER OF
Adil Charkaoui
BETWEEN:
JOËL-DENIS BELLAVANCE
and
GILLES TOUPIN
Appellants
and
ADIL CHARKAOUI
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
and
SOLICITOR GENERAL OF CANADA
Respondents
Written motion decided without appearance
by parties.
Order made at
Ottawa,
Ontario, on
November 26, 2008.
REASONS
FOR ORDER BY: LÉTOURNEAU
J.A.
Date:
20081126
Docket:
A-51-08
Citation: 2008 FCA 367
Present: LÉTOURNEAU
J.A.
IN THE MATTER OF a certificate under
subsection 77(1) of the
Immigration and Refugee
Protection Act,
SIGNED BY THE
Minister of Immigration and
the Solicitor General of Canada (Ministers)
S.C. 2001, c. 27 (IRPA);
IN THE MATTER OF the referral of this
certificate to the Federal Court of Canada
under subsection 77(1) and
sections 78 and 80 of the IRPA;
IN THE MATTER OF a motion to quash
subpoenas duces tecum filed by
Joël-Denis Bellavance and Gilles Toupin
and the
objections resulting from questions
raised on an examination on affidavit;
AND IN THE MATTER OF
Adil Charkaoui
BETWEEN:
JOËL-DENIS BELLAVANCE
and
GILLES TOUPIN
Appellants
and
ADIL CHARKAOUI
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
and
SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR
ORDER
LÉTOURNEAU
J.A.
[1]
The appellants, who are journalists, are applying to the Court to
determine the content of the appeal book, the parties having been unable to
agree on the issue.
[2]
They are challenging a decision of Justice Simon Noël of the
Federal Court in which he dismissed their motion to quash the subpoenas duces
tecum and the objections to the questions asked of one of them during his
examination on affidavit.
[3]
The respondent, Mr. Charkaoui, filed a motion to dismiss the
appeal, which was dismissed. At that time, the
appellants were granted leave to file an amended notice of appeal: see Justice
Trudel's order dated July 15, 2008.
[4]
At
the heart of the debate on appeal are the amendments made to the legislative
scheme applicable to immigrants and refugees by the Act to amend the
Immigration and Refugee Protection Act (certificate and special advocate) and
to make a consequential amendment to another Act, S.C. 2008, c. 3
(Bill C-3).
[5]
When the amendments came into force, the Federal Court had not yet
ruled on the reasonableness of certificate DES-3-03 issued against the
respondent Mr. Charkaoui.
[6]
An important result of these amendments can be found in subsection
7(1) of Bill C-3, where it is stipulated that “[a] proceeding relating to
the reasonableness of a certificate referred to the Federal Court under
subsection 77(1) of the Act is terminated” on the coming into force of this
Act.
The Act refers here to the amended legislation,
namely the Immigration and Refugee Protection Act, S.C. 2001, c.
27.
[7]
Clearly, the termination of the current proceeding and the
issuance of a new security certificate raised questions, inter alia,
with regard to the very validity of the orders for subpoenas duces tecum
made in this proceeding and the rejection of the objections made during the
examination on affidavit of one of the appellants.
[8]
According to the amended notice of appeal, the issues raised by
the parties are the following:
[Translation]
The issue to
be determined is the following: does Bill C-3 which terminated the
proceeding relating to the reasonableness of certificate DES-3-3 render the judgment
under appeal moot and unenforceable?
Alternatively, the questions raised by
the present appeal are the following:
a) Did the
trial judge err in refusing to recognize that the protection of the identity of
journalistic sources is entrenched in paragraph 2(b) of the
Charter?
b) Did the
trial judge err in concluding that the examinations of the journalists were
required for the motion for a stay of proceedings relating to security
certificate DES-3-03?
c) Did the
trial judge err in concluding that the journalists’ publication of the
information contained in the article published in La Presse newspaper on
June 22, 2007, was unlawful?
d) Did the trial judge err in factually
and legally obliging the journalists to guarantee the confidentiality of the
information justifying security certificate DES-3-03?
e) Did the
trial judge err in his interpretation and application of the Wigmore
tests?
[9]
The appellant proposed two draft agreements on the appeal book. The drafts were approved by the respondent Ministers but
not by Mr. Charkaoui, who wishes to include many other documents, such as:
[Translation]
All
the correspondence between the parties and/or with the Court
regarding the motions filed at trial (stay of proceedings, quashing of
subpoenas, dismissal of the appeal, etc.);
All
judgments and instructions concerning the motions filed at trial (stay of
proceedings, quashing of subpoenas, dismissal of the appeal, etc.);
All
minutes of telephone conversations held in relation to the motions filed at trial
(stay of proceedings, quashing of subpoenas, dismissal of the appeal, etc.);
All
the documents relied upon and cited (including all exhibits) in support
of the motions filed at trial (stay of proceeding, quashing of subpoenas,
dismissal of the appeal, etc.);
All
exhibits from docket DES-3-03 . . .;
Charkaoui
judgment 2007 SCC 9, Justice Lemieux's judgement 2008 FC 765 . . .;
Order
bringing Bill C-3 into force . . .; and
Private
document filed before Justice Noël (ex parte on July 13) . . . .
[10]
Mr. Charkaoui also wants to add the following basket clause to the
agreement on file:
[Translation]
It
is agreed that if it is useful or relevant to the issues, the parties may refer
to all exhibits of docket DES-3-03.
I agree with the appellants
that Mr. Charkaoui's claims go far beyond the framework necessary for resolving
their appeal.
Several are simply not warranted and flout Rule
344(1) of the Federal Courts Rules.
[11]
It should not be forgotten that the appellants are merely the
interveners in a dispute in which Mr. Charkaoui called them to testify for a
motion for a stay of proceedings concerning the security certificate. They do not necessarily have access to the material in file
DES-3-03, particularly that which is confidential.
[12]
Moreover, the appeal is not concerned with the reasonableness of
the certificate or the motion for a stay of proceedings in docket DES-3-03. It is limited to the decision on the motion to quash
subpoenas duces tecum and the objections made during the examination on
affidavit.
[13]
The irrelevance of some of Mr. Charkaoui's claims becomes clear
when one considers that he wants to include Justice Lemieux's judgement in the
appeal book for example. The Lemieux judgment refers to a decision made
in docket DES-4-08 in which the Federal Court dismissed Mr. Charkaoui's
motion for a temporary stay of the review of the reasonableness of the security
certificate issued against him on February 22, 2008.
[14]
In the interest of justice, [translation]
“the content of the appeal book”, as the appellants suggest, [translation] “should be limited to the
documents that are required to resolve the issues under appeal, the documents
that were filed at trial and
define the issues under appeal, and the documents that are relevant”.
[15]
Consequently, the appeal book shall be comprised of the exhibits
listed in Schedule A of the proposed order contained at Tab 4 of the
appellants’ motion record.
“Gilles
Létourneau”
Certified
true translation
Johanna
Kratz
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