[1] Before me is a motion by the Crown for a stay of the order under appeal and an expedited hearing date, and also a motion by the respondent Mr. Jaballah for an order pursuant to the principle in R. v. Rowbotham (1988), 25 O.A.C. 271, 41 C.C.C. (3d) 1, 63 C.R. (3d) 113 (Ont. C.A.), requiring the Crown to pay his legal costs of this appeal if the appeal is expedited. The order under appeal was made on May 23, 2003 by a designated judge on a referral under subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, formerly subsection 40.1(4) of the Immigration Act, R.S.C. 1985, c. I-2: Re Jaballah, 2003 FCT 640, [2003] F.C.J. NO. 822 (QL). The subject of the referral was the certified opinion (the "security certificate") of the Minister of Citizenship and Immigration and the Solicitor General of Canada, dated August 13, 2001, that the respondent Mr. Jaballah is inadmissible to Canada on national security grounds. The respondent Mr. Jaballah opposes the Crown's motions.

[2] This case has a long history. Mr. Jaballah is a national of Egypt. He is married. He and Mrs. Jaballah have six children; the two youngest were born in Canada. Mr. Jaballah arrived in Canada with his wife and their four eldest children in 1996. They each made refugee claims soon thereafter. Their claims were rejected. An application for leave and judicial review was commenced. In 1999, before that application was determined, Mr. Jaballah was the subject of a section 40.1 security certificate. Mr. Justice Cullen found the security certificate not to be reasonable, and it was quashed by his order dated November 2, 1999: Canada (Minister of Citizenship and Immigration v. Jaballah, [1999] F.C.J. No. 1681 (QL).

[3] On September 28, 2000, the application of Mr. Jaballah and his family for judicial review of the decision rejecting their refugee claim was allowed, and a rehearing was ordered: Jaballah v. Canada (Minister of Citizenship and Immigration) (2000), 9 Imm. L.R. (3d) 45, 196 F.T.R. 175, [2000] F.C.J. No. 1577 (QL). Mr. Jaballah's claim has not been reheard. There was a rehearing of the claims of Mrs. Jaballah and the four children on April 9, 2003. I was advised at the hearing of this motion that their claims were accepted.

[4] On August 13, 2001, the security certificate that is the subject of this appeal was issued under section 40.1 of the Immigration Act. I will refer to that security certificate as the "second certificate". Mr. Jaballah was arrested when the second certificate was issued. He has been in detention since then.

[5] On June 28, 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27, came into force, replacing the Immigration Act. The proceedings before the designated judge relating to the second certificate had not been concluded by that date. As a result, the proceedings were continued under Division 9 of the Immigration and Refugee Protection Act, the relevant portions of which read as follows:

76. The definitions in this section apply in this Division.

"information" [ « renseignements » ] means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.

"judge" [ « juge » ] means the Associate Chief Justice of the Federal Court or a judge of the Trial Division of that Court designated by the Associate Chief Justice.

76. Les définitions qui suivent s'appliquent à la présente section.

« juge » ["judge"] Le juge en chef adjoint de la Cour fédérale ou le juge de la Section de première instance de cette juridiction désigné par celui-ci.

« renseignements » ["information"] Les renseignements en matière de sécurité ou de criminalité et ceux obtenus, sous le sceau du secret, de source canadienne ou du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États ou de l'un de leurs organismes.

77. (1) The Minister and the Solicitor General of Canada shall sign a security certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court--Trial Division, which shall make a determination under section 80.

77. (1) Le ministre et le solliciteur général du Canada déposent à la Section de première instance de la Cour fédérale le certificat attestant qu'un résident permanent ou qu'un étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée pour qu'il en soit disposé au titre de l'article 80.

(2) When the security certificate is referred, a proceeding under this Act respecting the person named in the security certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.

(2) Il ne peut être procédé à aucune instance visant le résident permanent ou l'étranger au titre de la présente loi tant qu'il n'a pas été statué sur le certificat; n'est pas visée la demande de protection prévue au paragraphe 112(1).

78. The following provisions govern the determination:

78. Les règles suivantes s'appliquent à l'affaire :

(a) the judge shall hear the matter;

a) le juge entend l'affaire;

(b) the judge shall ensure the confidentiality of the information on which the security certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;

(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive;

(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the security certificate for determination;

d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;

(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the security certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;

(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the security certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;

f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande;

(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the security certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;

g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire;

(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the security certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;

h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;

(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and

i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant;

(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.

j) il peut recevoir et admettre en preuve tout élément qu'il estime utile -- même inadmissible en justice -- et peut fonder sa décision sur celui-ci.

79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a security certificate in order for the Minister to decide an application for protection made under subsection 112(1).

79. (1) Le juge suspend l'affaire, à la demande du résident permanent, de l'étranger ou du ministre, pour permettre à ce dernier de disposer d'une demande de protection visée au paragraphe 112(1).

(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Court Act.

(2) Le ministre notifie sa décision sur la demande de protection au résident permanent ou à l'étranger et au juge, lequel reprend l'affaire et contrôle la légalité de la décision, compte tenu des motifs visés au paragraphe 18.1(4) de la Loi sur la Cour fédérale.

80. (1) The judge shall, on the basis of the information and evidence available, determine whether the security certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.

80. (1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve dont il dispose.

(2) The judge shall quash a security certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the security certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.

(2) Il annule le certificat dont il ne peut conclure qu'il est raisonnable; si l'annulation ne vise que la décision du ministre il suspend l'affaire pour permettre au ministre de statuer sur celle-ci.

(3) The determination of the judge is final and may not be appealed or judicially reviewed.

(3) La décision du juge est définitive et n'est pas susceptible d'appel ou de contrôle judiciaire.

81. If a security certificate is determined to be reasonable under subsection 80(1),

(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;

(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and

81. Le certificat jugé raisonnable fait foi de l'interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu'il soit nécessaire de procéder au contrôle ou à l'enquête; la personne visée ne peut dès lors demander la protection au titre du paragraphe 112(1).

[6] In July of 2002, Mr. Jaballah made an application under section 112 of the Immigration and Refugee Protection Act for a determination that he is a person in need of protection. If Mr. Jaballah is determined to be in need of protection from a particular country, there will be a statutory stay of any removal order against Mr. Jaballah to that country as long as the determination and the statutory stay remain in effect (section 114 of the Immigration and Refugee Protection Act). At Mr. Jaballah's request pursuant to subsection 79(1) of the Immigration and Refugee Protection Act, the designated judge suspended the security certificate proceedings until his application for protection was dealt with.

[7] By virtue of section 80 of the Immigration and Refugee Protection Act, Mr. Jaballah's application for protection had the potential to add to the task of the designated judge. If a decision had been made on Mr. Jaballah's application for protection before the conclusion of the certificate proceedings, the designated judge would have been obliged to consider whether the decision on the application for protection was lawfully made (subsection 80(1)). If the designated judge had found that the decision on the application for protection was not lawfully made, he would have been required to quash the decision and suspend the certificate proceedings pending a new decision on the application for protection (subsection 80(2)). One of the issues on appeal is whether it was open to the designated judge to proceed with the certificate proceedings before any decision was made on the application for protection.

[8] What motivated the designated judge to decide as he did was the time being taken by immigration officials to deal with Mr. Jaballah's application for protection. In August of 2002, Mr. Jaballah was provided with a copy of a report dated August 15, 2002 in which an immigration officer, referred to as a "Pre-Removal Risk Assessment officer" or "PRRA officer", expressed the opinion that "there are substantial grounds for believing that the applicant would be killed or tortured should he be required to return to Egypt". It appears to be undisputed that, pursuant to section 97 of the Immigration and Refugee Protection Act, a risk assessment is required in an application for protection.

[9] It is the position of the Crown that the August 15, 2002 report is not the final risk assessment for the purposes of Mr. Jaballah's application for protection, and that it was provided to Mr. Jaballah by mistake. Mr. Jaballah has taken the opposite view, leading him to make a number of motions that were heard by the designated judge in the fall of 2002. I need not describe the motions in detail. It is enough to say that one of the arguments for Mr. Jaballah was that the report rendered moot the designated judge's review of the second certificate, and that Mr. Jaballah's immigration status had become the responsibility of the Immigration and Refugee Board. The designated judge did not accept that argument. He accepted the Crown's position that before the Minister could finally determine Mr. Jaballah's application for protection, it was necessary to consider, pursuant to paragraph 113(d), whether Mr. Jaballah's application should be refused despite any risk of returning him to Egypt because of the "nature and severity of the acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada". He found that position to be supported by Regulation 172 of the Immigration and Refugee Protection Regulations, SOR/2002-227, which requires an applicant for protection to be provided with a written assessment on the basis of the factors referred to in paragraph 113(d) before a decision is made on the application. No such assessment has been done in Mr. Jaballah's case.

[10] On October 8, 2002, the designated judge dismissed Mr. Jaballah's motions: Re Jaballah (2002), 224 F.T.R. 20, [2002] F.C.J. No. 1385 (QL). The proceedings in respect of the second certificate remained suspended. The designated judge was informed that the Crown estimated that a determination on the application for protection would be made in approximately three months.

[11] Another six months passed, and still no decision had been made on Mr. Jaballah's application for protection. On April 12, 2003, the designated judge heard argument on another motion by Mr. Jaballah. The result of the motion is embodied in the order under appeal, dated May 23, 2003, which reads as follows:

1. The motion is allowed in part, in the following respects:

(a) The decision of the PRRA officer, dated August 15, 2002, provided to Mr. Jaballah in August of 2002 and now filed at the direction of the Court, is deemed to be the decision of the Minister on the risk assessment, pursuant to s. 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended ("IRPA"), now facing Mr. Jaballah if he is to be removed from Canada to Egypt, the country of which he is a national.

(b) The delay in determining Mr. Jaballah's application for protection submitted to the Minister in July 2002, constitutes an abuse of process for it continues, without satisfactory explanation or reasonable forecast of when it may be determined, while Mr. Jaballah remains in detention, in solitary confinement, without statutory opportunity for review of his detention until there be a decision in relation to the security certificate before the Court referred to it by the applicant Ministers on August 15, 2001.

(c) The proceedings to assess the reasonableness of the Minister's security certificate before the Court, suspended at the request of the respondent pending determination of his application for protection, are resumed.

2. The Court affirms that the respondent's motion is dismissed insofar as it sought the quashing of the s. 177 IRPA security certificate before the Court, and the release from custody of the respondent.

3. The Court's determination of the reasonableness of the security certificate is set out by separate order.

4. The respondent shall have costs, on a solicitor and client basis, of the preparations for and the hearing of the application heard April 11, 2003.

5. Costs were not requested on behalf of the applicant Ministers. If either party has further concerns about other costs of these proceedings, upon which the other party does not agree, the matter may be raised by written submissions or by personal appearance.

[12] In a separate order made on the same date, the designated judge determined, under subsection 80(1) of the Immigration and Refugee Protection Act, that the second certificate was reasonable based on the information and evidence available to the Court. He rejected the submissions of counsel that the second certificate should be quashed on the basis that its issuance was an abuse of process, or that the matter was governed by the doctrines of res judicata or issue estoppel. In that regard, the designated judge accepted the submissions of the Crown that he had been presented with evidence and information relating to the second certificate that had not been presented to Mr. Justice Cullen in 1999 in respect of the first certificate. Subsection 80(3) of the Immigration and Refugee Protection Act precludes any review or appeal of the determination of the designated judge that the second certificate is reasonable.

[13] The designated judge declined to make a determination under subsection 80(1) as to the lawfulness of the decision on Mr. Jaballah's application for protection, because that application was still under consideration and there had been no decision. It was his opinion that the decision, when made, would be subject to an application for leave and for judicial review (paragraph 30 of the reasons). The Crown's appeal takes issue with that point.

[14] The Crown has appealed the May 23, 2003 order quoted above, alleging that the designated judge erred in law in (1) finding that the delay in determining the application of Mr. Jaballah under section 112 of the Immigration and Refugee Protection Act is an abuse of process, (2) requiring the August 15, 2002 report of the Pre-Removal Risk Assessment officer to be treated as the decision of the Minister on the question of risk pursuant to section 97 of the Immigration and Refugee Protection Act, and (3) imposing solicitor and client costs on the Crown.

[15] Mr. Jaballah has cross-appealed on the basis that the second certificate should be quashed as an abuse of process or on the basis of res judicata or issue estoppel, that Mr. Jaballah should be released from detention, and that Mr. Jaballah should be granted his costs of all proceedings on a solicitor and client basis.

[16] Mr. Jaballah has also commenced an appeal of the May 23, 2003 order of the designated judge on a number of grounds, including some that are not mentioned in the cross appeal (A-288-03). The parties agree that the appeals should be heard together. I will make an order to that effect.

Motion to expedite the appeal

[17] The Crown argues that it would be in the interests of justice to expedite the hearing. When the motion was first made, the Crown requested a hearing in November. When the Judicial Administrator asked for suggested dates, they suggested some dates in December. At that time, Crown counsel believed that no changes would be required to the normal deadlines for the steps required to prepare the case for hearing. However, the parties have already missed the deadline for filing their agreement on the contents of the appeal book. They now agree that this will be done by Friday, August 29, 2003. The parties also agree that if all other steps are done within the stipulated time limits, the hearing will probably be ready to be set down for hearing in February or March of 2004, even without an order expediting the hearing.

[18] Mr. Jaballah argues that expediting the appeal will result in financial hardship for him, as he has not yet secured legal aid. Counsel for Mr. Jaballah has also filed evidence that, because of other matters in which he is involved as counsel in this Court, the resources of his office will be unduly stretched if the appeal is expedited.

[19] Taking these considerations into account, as well as the written submissions of counsel for both parties, I am not persuaded that the interests of justice will be served by expediting the hearing of this appeal by two or three months. The motion to expedite the appeal will be denied.

[20] Mr. Jaballah's motion for a Rowbotham order, which was conditional upon the granting of the motion to expedite, will also be denied.

Motion for stay

[21] The Crown also seeks a stay of the effect of the orders pending the determination of this appeal . It is undisputed that the Crown cannot obtain a stay unless (1) the appeal raises a serious question, (2) the Crown will suffer irreparable harm if the stay is not granted, and (3) the harm that will be suffered by the Crown if the stay is not granted outweighs the harm that will be suffered by Mr. Jaballah if the stay is granted.

[22] The threshold for the existence of a serious question is low. The Crown has submitted a number of points that will be raised in its appeal. In my opinion, the Crown has raised a serious question on the appeal.

[23] Irreparable harm is harm that cannot be remedied or quantified in monetary terms. The principal argument for the Crown, as I understand it, is that if there is no stay, the Crown's appeal will be rendered moot, in the sense that Mr. Jaballah will have the benefit of the decision of the designated judge before this Court considers the appeal.

[24] The view of Crown counsel is that if there is no stay, immigration officials will be obliged to proceed with Mr. Jaballah's protection application on the basis of the directions given by the designated judge, which requires the August 15, 2002 risk assessment report to be treated as the final risk assessment, leaving them no opportunity to present the decision-maker with more recent information, including information about certain assurances said to have been received from the Government of Egypt after August, 2002.

[25] I agree with the Crown that there is a legitimate public interest in having this Court determine the questions of statutory interpretation raised in this matter. However, I am not persuaded that the integrity of the statutory scheme would be seriously jeopardized if there is no stay. If the Crown's appeal is successful, the Crown will undoubtedly be given the opportunity to correct any steps the Crown may have taken on the basis of the orders of the designated judge that are found to be based on an incorrect interpretation of the law.

[26] I note also that, as indicated above, the appeal is likely to be ready for hearing early in 2004, which is only a few months away. Mr. Jaballah's application for protection has already been outstanding for over two years, and the Crown has provided me with no basis for concluding that any decision on that application is imminent, or even that a decision is likely to be rendered before this appeal is heard.

[27] The Crown also argues that if there is no stay, Mr. Jaballah will be entitled to a 120 detention review under subsection 84(2) of the Immigration and Refugee Protection Act, a review to which he would not be entitled if the order of the designated judge is found to be wrong in law. I am not persuaded that a detention review, by itself, represents irreparable harm to the Crown. The likely outcome of that review is a matter for speculation.

[28] I conclude that the Crown has failed to establish that irreparable harm will result if the stay is not granted. That is sufficient to justify dismissing the motion for a stay. For these reasons, the motion for a stay of the May 23, 2003 order of the designated judge will be denied.

Costs

[29] Mr. Jaballah seeks costs of these motions on a solicitor and client basis in any event of the appeal, on the basis that the motions are frivolous. Solicitor and client costs are not awarded in the absence of reprehensible or scandalous conduct, which could in certain circumstances included a motion made on frivolous grounds. However, while the Crown's motions have not succeeded, I do not agree that they are frivolous. The motion for solicitor and client costs will be denied.

[30] Pursuant to Rule 22 of the Federal Court Immigration and Refugee Protection Rules, SOR/98-235 as amended by SOR/20002-232, costs cannot be awarded in this matter unless there are "special reasons". There are no such special reasons in this case. No costs will be awarded on these motions.

"Karen R. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS: A-287-03

A-288-03

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE SOLICITOR GENERAL OF CANADA

Appellants

and

MAHMOUD JABALLAH

Respondent

PLACE OF HEARING: TORONTO , ONTARIO

DATE OF HEARING: AUGUST 25, 2003

REASONS FOR ORDER BY: SHARLOW J.A.

DELIVERED AT TORONTO, ONTARIO ON TUESDAY, AUGUST 26, 2003.

DATED: AUGUST 26, 2003

APPEARANCES:

Mr. Donald A. MacIntosh / Mr. David Tyndale

For the Appellants

Mr. Rocco Galati

For the Respondent

SOLICITORS OF RECORD:

Morris Rosenberg

Deputy Attorney General of Canada

For the Appellants

Galati, Rodrigues & Associates

Toronto, Ontario

For the Respondent

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Canada (Minister of Citizenship and Immigration) v. Jaballah, 2003 FCA 321

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2003 FCA 321