Zundel v. Canada, 2004 FCA 145

Date: 20040401

Docket: A-18-04

Citation: 2004 FCA 145

CORAM:        STRAYER J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                                                               ERNST ZUNDEL

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                         Heard at Toronto, Ontario, on January 28, 2004.

                                   Judgment delivered at Ottawa, Ontario, on April 1, 2004.

REASONS FOR JUDGMENT BY:                                                                               SEXTON J.A.

CONCURRED IN BY:                                                                                                STRAYER J.A.

                                                                                                                                        EVANS J.A.

Date: 20040401

Docket: A-18-04

Citation: 2004 FCA 145

CORAM:        STRAYER J.A.

SEXTON J.A.

EVANS J.A.

BETWEEN:

                                                               ERNST ZUNDEL

                                                                                                                                            Appellant

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                        Respondent

                                                    REASONS FOR JUDGMENT

SEXTON J.A.

I. Introduction

[1]                In the context of a hearing into the reasonableness of a security certificate issued against Ernst Zundel pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), the designated judge of the Federal Court denied Mr. Zundel's request for further disclosure of information upon which the certificate was based. The main issue in this case is whether the designated judge's decision regarding the disclosure of evidence is subject to appeal in this Court.

II. Facts

[2]                On May 1, 2003, the Solicitor General of Canada (the "Solicitor General") and the Minister of Citizenship and Immigration (the "Minister") signed a certificate pursuant to subsection 77(1) of the IRPA, stating that Mr. Zundel, a permanent resident, was inadmissible to Canada on the following security grounds: engaging in acts of terrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety of persons in Canada or being a member of a group that there are reasonable grounds to believe has or will engage in acts of espionage, subversion or terrorism.

[3]                Immediately after issuing this certificate, the Minister and the Solicitor General also issued a warrant for Mr. Zundel's arrest and detention pursuant to subsection 82(1) of the IRPA. Subsection 82(1) provides that such a warrant may be issued against a permanent resident if there are reasonable grounds to believe that certain circumstances exist, including that the permanent resident is a danger to national security or to the safety of any person. Mr. Zundel has been detained since this time.

[4]                As required under subsection 83(1) of the IRPA, the designated judge commenced a hearing to review the reasons for Mr. Zundel's continued detention within 48 hours after the start of his detention. The designated judge ultimately concluded that Mr. Zundel represented a danger to the security of Canada and consequently should remain in detention.

[5]                The designated judge also commenced a separate review into the reasonableness of the security certificate. During the hearing, Mr. Zundel applied to the designated judge for an order requiring the Solicitor General and/or the Minister to provide him with information in addition to the summary of information required to be provided to him pursuant to paragraph 78(h) of the IRPA. Specifically, Mr. Zundel requested the following information:

1) Name or names of CSIS officers knowledgeable about the statements summarizing the information and evidence which were provided to Mr. Zundel by CSIS;

2) List of all CSIS and RCMP officers as well as any other public servant of Canada, who have interviewed Mr. Zundel or others about him, including date of interview and whether any record of interview is available;

3) Summary of the evidence to be adduced for the Certificate Review on December 11, 2003;

4) Copies of all materials Crown intends to present to the Court at said Review;

5) Copies of all materials which Crown does not intend to present to the Court but which may be relevant to the Review;

6) List of all witnesses Crown intends to call at the hearing;

7) List of all witnesses Crown does not intend to call but who may be in possession of information that is relevant, as well as summary of said information.

[6]                The designated judge denied Mr. Zundel's request for further disclosure. He concluded that divulging the information requested would be injurious to national safety and would not necessarily provide any relevant evidence to Mr. Zundel. The judge indicated that he would continue to review information disclosed in confidence to him by the Ministers in order to determine which information should be communicated to Mr. Zundel, keeping in mind the balance between Mr. Zundel's right to know the case against him and the interests of national security.

[7]                After the designated judge dismissed Mr. Zundel's motion for disclosure, Mr. Zundel purported to launch an appeal of this decision.

[8]                The designated judge has not yet ruled on whether the security certificate which certified inter alia that Mr. Zundel was a danger to the security of Canada was reasonable. This determination is within the exclusive jurisdiction of the designated judge. Nothing in these reasons should be taken as expressing any opinion on this question.

[9]                In the first of two motions before this Court on January 28, 2004, the Minister and the Solicitor General argued that Mr. Zundel's appeal of the designated judge's decision not to disclose further information should be quashed on the ground that this Court does not have the jurisdiction to hear such an appeal. They also argued that Her Majesty the Queen was improperly named as the respondent since the Solicitor General and the Minister issued the security certificate. Accordingly, they asked for an order striking Her Majesty the Queen as respondent and adding them as respondents. Mr. Zundel has consented to this substitution, and accordingly an order will go to that effect.

[10]            In the second motion before this Court, Mr. Zundel argued that the designated judge's review of the reasonableness of the security certificate should be stayed pending his appeal of the judge's decision not to disclose additional information to him as well as his appeal at the Ontario Court of Appeal regarding the constitutionality of sections 77, 78, 80, 81, 82 and 83 of the IRPA.

III. Security Certificate Scheme under the IRPA

[11]            Under subsection 77(1) of the IRPA, the Minister and the Solicitor General are empowered to sign a certificate stating that a person is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality. When such a certificate is issued, a designated judge of the Federal Court must review the certificate pursuant to subsection 80(1) of the IRPA to see if it is reasonable. Section 78 of the IRPA provides that the designated judge must provide the person a summary of the information upon which the certificate is based so that he is reasonably informed of the circumstances giving rise to the certificate. At the same time, the designated judge must also ensure the confidentiality of information if its disclosure would be injurious to national security or to the safety of any person. Subsection 80(3) provides that there is no appeal or judicial review of the judge's determination. If a certificate is determined to be reasonable, according to section 81, a removal order against the permanent resident or foreign national is automatically in force.

[12]            Sections 76, 77, 78, 80 and 81 of the IRPA provide as follows:

IV. Motion to quash Mr. Zundel's appeal

Arguments

[13]            According to the respondent, Mr. Zundel's appeal is precluded by subsection 80(3) of the IRPA, which provides that there is no right to appeal a decision of a designated judge reviewing the reasonableness of a security certificate. Subsection 80(3) therefore overrules the general right to appeal interlocutory judgments of the Federal Court pursuant to subsection 27(1) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended.

[14]            Furthermore, the respondent argued that subsection 80(3) of the IRPA was enacted to protect the security of Canadians, and Parliament intended that proceedings to determine the reasonableness of security certificates should be expeditious. As a result, Parliament intended to preclude appeals of decisions of the designated judge which would unduly delay hearings into the reasonableness of the certificate.

[15]            The respondent also relied on this Court's decision in Re Charkaoui, 2003 FCA 407 ("Charkaoui"). In Charkaoui, supra, this Court held that a designated judge's decision pursuant to section 83 of the IRPA to uphold the continued detention of a permanent resident could not be appealed even though such an appeal was not expressly precluded by the IRPA. The Court stated at paras. 15 and 17:

In subsection 80(3) of the Act, Parliament provided that the determination of the judge on whether the certificate is reasonable is "final and may not be appealed or judicially reviewed". By adding these words, it clearly limited the general appeal jurisdiction of this Court, which it unfortunately failed to do in sections 82 and 83 concerning detention. However, this does not mean that the decision on detention is liable to appeal or judicial review. This can be seen simply by examining, in the first place, the role the designated judge is required to perform in relation to the certificate and the detention.

...

It is inconceivable to me that Parliament intended that the determination of the issue of dangerousness to national security in the context of the analysis of the certificate could not be reviewed on appeal, but that the same issue, if determined by the same judge in the context of a review of the detention, could instead be reviewed on appeal. To allow an appeal in the context of the review of detention is to allow a person subject to inadmissibility to do indirectly what that person cannot do directly because of the prohibition in subsection 80(2) of the Act, that is, to review the reasonableness of the minister's fears for national security. In other words, it is to use the detention to obtain a review of the validity of the reasons for the certificate although Parliament had no intention that those reasons should be reviewed by the Court of Appeal.

[16]            In response to the respondent's motion to quash the appeal, Mr. Zundel argued that subsection 27(1) of the Federal Court Act clearly affords him a right to appeal an interlocutory order of a Federal Court Judge. This includes the designated judge's interlocutory order denying his request for the disclosure of further evidence under the IRPA. Subsection 27(1) of the Federal Court Act provides:

An appeal lies to the Federal Court of Appeal from any of the following decisions of the Federal Court...

(c) an interlocutory judgment;

[17]            Mr. Zundel argued that subsection 80(3) of the IRPA does not preclude this general right to appeal interlocutory judgments of the Federal Court. Subsection 80(3) is specific in its wording and prohibits only appeals or judicial reviews of the designated judge's ultimate determination that the certificate is or is not reasonable; it does not preclude appeals of interlocutory decisions of the designated judge, including decisions as to what evidence or information can be disclosed to Mr. Zundel.

[18]            According to Mr. Zundel, in order for the right of appeal under subsection 27(1) of the Federal Court Act to be extinguished, the statute purporting to do so must use clear language. This is because when Parliament intends to prohibit appeals which would otherwise be available, it uses clear language. For example, paragraph 72(2)(e) of the IRPA expressly provides that no appeal lies from a decision of the Federal Court with respect to an application for judicial review or an interlocutory judgment. Section 72 states:

72.(1) Judicial review by the Federal Court with respect to any matter - a decision, determination or order made, a measure taken or a question raised - under this Act is commenced by making an application for leave to the Court.

(2) The following provisions govern an application under subsection (1):

...

(e) no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment.

Paragraph 74(d) of the IRPA also provides that an appeal may only be made to the Federal Court of Appeal if a judge of the Federal Court certifies that a serious question of general importance is involved.

74. Judicial review is subject to the following provisions:

(d) an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question.

Accordingly, if Parliament intended to preclude an appeal of the designated judge's interlocutory order that no further information be disclosed to Mr. Zundel, it would have said this expressly. Furthermore, since the provisions of the IRPA dealing with the issuance of security certificates already expressly take away substantial procedural safeguards from a permanent resident, it is especially important that any remaining procedural safeguards be strictly enforced.

[19]            Finally, Mr. Zundel argued that this Court's decision in Charkaoui, supra is distinguishable from the present case. In Charkaoui, supra, while there was no express provision in the IRPA precluding an appeal of the designated judge's decision regarding the continued detention of a permanent resident, the Court nevertheless held that such an appeal was precluded because the determination made upon review of detention is identical to the determination made when reviewing the reasonableness of a certificate, which cannot be appealed. As a result, if the Court had held that the decision regarding continued detention could be appealed it would be circumventing the prohibition against appeal provided in subsection 80(3). In this case, the determination regarding the disclosure of evidence is not identical to the determination regarding the reasonableness of the certificate.

Analysis

[20]            In my opinion, a determination by a designated judge as to what information should be disclosed in the context of a hearing into the reasonableness of a security certificate is not subject to appeal in this Court pursuant to subsection 80(3) of the IRPA.

[21]            First and foremost, I base this conclusion on the language of the IRPA. If sections 78 and 80 of the IRPA are read together, it is clear that subsection 80(3) does not only preclude an appeal or review of the designated judge's ultimate decision as to the reasonableness of the certificate but also preludes appeals or reviews of other decisions which section 78 indicates are part and parcel of the judge's ultimate determination. Subsection 80(3) states:

The determination of the judge is final and may not be appealed or judicially reviewed. [emphasis added]

The "determination" refers to the determination of the designated judge under subsection 80(1) as to whether the security certificate is or is not reasonable; however, section 78 indicates, inter alia, that part of the determination into the reasonableness of the certificate includes the designated judge's determination as to what information should be disclosed to a permanent resident or foreign national against whom a certificate has been issued. Section 78 states:

The following provisions govern the determination [into to the reasonableness of the certificate]

..

(b) the judge shall ensure the confidentiality of the information on which the 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;

...

(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 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;

(f) 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 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; [emphasis added]

[22]            The language of section 78 of the IRPA indicates that the decision as to what information should be disclosed during the course of the hearing is part and parcel of the judge's determination under subsection 80(1), and as a result, an appeal or judicial review of the designated judge's decision as to what information should be disclosed is also precluded by subsection 80(3).

[23]            The fact that the designated judge's decision regarding the disclosure of evidence to Mr. Zundel was part of the ultimate determination into the reasonableness of the certificate under subsection 80(1) and, as a result, cannot be appealed pursuant to subsection 80(3) is also supported by the Supreme Court of Canada's decision in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 ("Tobiass").

[24]            The facts in Tobiass, supra were as follows. Three Canadian citizens were notified that the Minister was going to seek revocation of their citizenships pursuant to subsection 18(1) of the Citizenship Act, R.S.C. 1985, c. C-29 (the "Citizenship Act") for failing to disclose, when applying to become citizens, that they had committed atrocities during World War II. Section 18 of the Citizenship Act, which is analogous to section 80 of the IRPA, provided as follows:

The Federal Court Trial Division was in the process of holding a hearing pursuant to paragraph 18(1)(b) of the Citizenship Act into whether the three citizens had in fact failed to disclose atrocities they had committed during World War II when the citizens brought a motion for a permanent stay of the proceedings against them. They applied for the stay on the basis that the independence of the Trial Division was compromised by private conversations which took place between the Chief Justice and counsel for the Minister.

[25]            The Trial Division granted the stay, and the Minister appealed this decision to the Federal Court of Appeal. The citizens argued that the Federal Court of Appeal did not have jurisdiction to hear the appeal from the Trial Division's decision to grant the stay because subsection 18(3) of the Citizenship Act precluded such an appeal. The Federal Court of Appeal, after finding that it had the requisite jurisdiction, allowed the Minister's appeal. The citizens appealed to the Supreme Court of Canada. While the Supreme Court of Canada dismissed the appeal, finding that subsection 18(3) did not preclude an appeal of the Federal Court judge's decision to grant the stay of the proceedings in that case, it nevertheless suggested that subsection 18(3) precluded not only appeals of the judge's ultimate determination whether a citizen committed a false representation or fraud or knowingly concealed material circumstances but also precluded certain interlocutory decisions made in the process of the subsection 18(1) determination. The Supreme Court found that an appeal was not precluded in the facts of that particular case because the stay granted by the Trial Division was completely unrelated to its power to make a determination pursuant to subsection 18(1).

[26]            The Supreme Court stated as follows in Tobiass, supra at paras. 56 to 58, 61 and 66:

Although the issue does not arise here, there is a great deal of force to the argument that s. 18(1) of the Citizenship Act encompasses not only the ultimate decision as to whether citizenship was obtained by false pretences, but also those decisions made during the course of a s. 18 reference which are related to this determination. This would encompass all the interlocutory decisions which the court is empowered to make in the context of a s. 18 reference (see, for instance, s. 46 of the Federal Court Act and Rules 5, 450-455, 461, 477, 900-920, 1714 and 1715 of the Federal Court Rules, C.R.C., c. 663). This interpretation of s. 18(1) was adopted by the Federal Court of Appeal in Luitjens, supra, where it was held that interlocutory decisions made in the context of s. 18(1) reference are decisions made "under" s. 18(1). It is not necessary for the purpose of this decision to determine whether this conclusion should be varied. That should only be done in an appeal where the issue arises from the facts. [emphasis added]

However, whether s. 18(1) is interpreted narrowly as encompassing only the ultimate decision as to whether citizenship was obtained by false pretences, or more broadly to include the interlocutory decisions made in the context of a s. 18(1) hearing which are related to this determination, it is apparent that it does not encompass an order granting or denying a stay of proceedings.

Unlike interlocutory decisions, a stay of proceedings will not be made in order to more efficiently determine the ultimate question of whether citizenship was obtained by false pretences. An order staying proceedings is therefore not related to this ultimate decision.

...It follows that a decision allowing or denying a motion for a stay of proceedings is not a decision made "under" s. 18(1). It is a decision made under s. 50 of the Federal Court Act and may be appealed according to the rules set out at s. 27 of that Act....

...The power to order a stay does not flow by necessary implication from the power to decide if citizenship was obtained by false pretences, set out at s. 18(1). Rather, it is a power which not only has its source in a different statutory provision (s. 50 of the Federal Court Act) but is also unrelated to the power set out at s. 18(1). To borrow the words of Lamer C.J. in Hinse, it is a "separate, divisible judicial act" (p. 626). Appeals from a decision to stay proceedings (or to refuse to enter a stay) should therefore be governed by the rules applicable to the statutory provision empowering the court to make this decision. Those rules are set out at s. 27 of the Federal Court Act and they provide expressly for a right of appeal. It follows that the Court of Appeal had jurisdiction to hear the Crown's appeal in this case.

[27]            Applying the reasoning of the Supreme Court of Canada in Tobiass, supra to the facts of this case reveals that the designated judge's decision to refuse to disclose further information to Mr. Zundel was related to the ultimate decision. Indeed, section 78 of the IRPA expressly requires the designated judge to determine what evidence should be disclosed to a person against whom a certificate has been issued. In other words, the designated judge's determination regarding what information should be publicly disclosed is a necessary part of the determination as to whether or not the security certificate is reasonable. Accordingly, subsection 80(3) of the IRPA not only precludes an appeal from the ultimate determination as to the reasonableness of the certificate but it also precludes appeals from decisions regarding the disclosure of evidence. The determination as to what information should be publicly disclosed is clearly "related" to the ultimate determination of the reasonableness of the certificate within the meaning of Tobiass, supra.

[28]            This interpretation is also consistent with one of the main purposes behind the IRPA and subsection 80(3) in particular, which is to streamline immigration processes and decrease the amount of time it takes to determine whether someone is or is not eligible to remain in Canada on security grounds. Paragraph 78(c) of IRPA states:

The following provisions govern the determination [into the reasonableness of the certificate]:

...

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

In Charkaoui, supra, when this Court found that the designated judge's decision regarding the continued detention of a permanent resident under section 83 of the IRPA was not subject to appeal, it noted that allowing such an appeal would defeat Parliament's intention of establishing a flexible and rapid mechanism. The Court stated at paras. 24 and 32:

... [T]his flexible and rapid mechanism is consistent with Parliament's intention, expressed in paragraph 78(c) of the Act, which states that the designated judge shall proceed informally and expeditiously. With respect, I think that any conclusion that Parliament intended to maintain, in juxtaposition with this efficient and rapid mechanism, a long and costly appeal process, is to disregard Parliament's intention....

... [I]t was not Parliament's intention to punctuate and break up, through uncontrolled and repeated appeals, the continuity of this process of review of the detention by a designated judge.

In my opinion, these comments are equally applicable in the case at bar.

[29]            Subsection 80(3) of the IRPA clearly indicates that Parliament intended to have finality in proceedings relating to the reasonableness of security certificates. Allowing an appeal from the designated judge's decision regarding what information should be publicly disclosed to Mr. Zundel, a decision which section 78 indicates is a part of each and every determination into the reasonableness of a security certificate, would defeat Parliament's intention to establish finality. In my opinion, the following comments of the Supreme Court of Canada in Tobiass, supra, at para. 59 in the context of the Citizenship Act, are also helpful in this case.

Furthermore, it may be that allowing appeals from interlocutory decisions made in the context of a s. 18 reference would effectively defeat Parliament's goal of finality in citizenship matters. As McLachlin J. observed in R. v. Seaboyer, [1991] 2 S.C.R. 577, there is a valid policy concern to control the "plethora of interlocutory appeals and the delays which inevitably flow from them" (p. 641).

[30]            Furthermore, the fact that Parliament did not intend appeals from the decisions of designated judges as to what evidence should be disclosed is evident from the fact that the IRPA does not address many of the practical difficulties associated with an appellate court considering these cases. For example, if this Court were to hear appeals from decisions of designated judges regarding what evidence should be disclosed, it seems likely that this Court would have to examine the evidence. However, Parliament intended that this sensitive information concerning national security would not go beyond the designated judge. In Charkaoui, supra, Létourneau J.A. stated at paras. 19 and 20:

Recognizing a right of appeal on the issue of detention would also contravene Parliament's intention in relation to the taking and the handling of the evidence. Indeed, it is clear from subsection 80(3) of the Act, which prohibits any appeal on the reasonableness of the certificate, that Parliament intended that the evidence concerning the dangerousness for national security, which is necessary in determining the reasonableness of the certificate, be taken and handled by the designated judge and go no further. However, to recognize a right of appeal on the issue of detention would allow such evidence to go beyond this framework and end up before the Court of Appeal. This poses a number of practical problems and raises some important questions for which Parliament has not provided any answer - which, in my opinion, indicates once again that Parliament did not contemplate any appeal from a decision on detention.

In fact, as this case illustrates, the designated judge, when taking and handling the evidence, did hear from a number of witnesses for both the prosecution and the defence on the issue of the danger to security posed by the appellant. He not only heard these witnesses, he saw them. He assessed their credibility. What useful role can the Court of Appeal play in such a context, given the applicable standard of review in such situations? Worse still, how would it assess this evidence if there is no recording of the testimony? Will it then proceed with a hearing de novo, hear the witnesses, review the documentary evidence and assess the testimony in light of that evidence?

In my opinion, these concerns are equally applicable to appeals from a designated judge's decision regarding the disclosure of evidence.

[31]            The provisions of the IRPA dealing with the review of a security certificate attempt to strike a balance between according permanent residents and foreign nationals sufficient due process protections and protecting national security and the safety of persons. The process that Parliament has ultimately selected for achieving this balance is to have a designated judge of the Federal Court hear evidence in order to determine whether or not the issuance of the security certificate was reasonable. During the process of hearing the evidence, that same judge must also determine which information may or may not be disclosed to the public, which includes the person against whom the certificate has been issued. Paragraph 78(h) of the IRPA provides that the designated judge must provide permanent residents or foreign nationals with a summary of the information or evidence before the judge that enables them to be reasonably informed of the circumstances giving rise to the certificates without disclosing anything that in the opinion of the judge would be injurious to national security or to the safety of any person. Parliament has made it clear that this process is a final one and cannot be appealed to the Federal Court of Appeal.

V. Motion to stay review of security certificate

[32]            As previously mentioned, there are two motions before this Court. In the second motion, Mr. Zundel has asked for a motion staying the designated judge's review into the reasonableness of the certificate pending two appeals: his appeal of the designated judge's decision regarding the disclosure of evidence and his appeal at the Ontario Court of Appeal regarding the constitutionality of certain provisions of the IRPA.

[33]            Given my earlier conclusion that Mr. Zundel's appeal of the designated judge's decision not to disclose additional evidence should be quashed, his motion to stay the review of the certificate pending this appeal cannot succeed. As a result, it is only necessary to consider Mr. Zundel's argument that the hearing should be stayed pending the decision of the Ontario Court of Appeal.

[34]            Before discussing the merits of this argument, it is helpful to understand the background to Mr. Zundel's pending appeal before the Ontario Court of Appeal. Mr. Zundel brought an application at the Ontario Superior Court of Justice seeking a writ of habeas corpus ad subjiciendum and challenging the constitutional validity of sections 77, 78, 80, 81 and 83 of the IRPA. The Crown sought a stay of the proceedings at the Ontario Superior Court of Justice on the grounds that the matter was more appropriately dealt with in the Federal Court. Justice Benotto granted the Crown's motion, declining to exercise her jurisdiction to hear Mr. Zundel's application. Mr. Zundel then appealed Justice Benotto's decision to decline to exercise her jurisdiction to the Ontario Court of Appeal.

[35]            Mr. Zundel also made a motion before the designated judge asking that the proceedings into the reasonableness of the security certificate be temporarily adjourned pending the appeal at this court regarding the disclosure of evidence and pending the appeal at the Ontario Court of Appeal regarding the constitutionality of certain provisions of the IRPA. On February 6, 2004, the designated judge issued reasons denying this motion. In these reasons, he emphasized that Mr. Zundel's counsel previously had an opportunity to make arguments before him regarding the constitutionality of the provisions of the IRPA, but counsel declined to take advantage of this opportunity. Indeed, a hearing for these issues had been scheduled to take place on November 6^th and 7^th, 2003, and both parties had already provided their records to the court. However, just before the hearing, Mr. Zundel's counsel withdrew the constitutional challenge before the Federal Court, and instead brought the question before the Ontario Superior Court. I agree with the designated judge that because the Federal Court was ready to hear this issue in November and the appellant declined to proceed, it is not appropriate for this court now to grant a stay.

[36]            In RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the Supreme Court of Canada set out a three part test for determining whether a stay should be granted: 1) whether there is a serious question to be tried; 2) whether the applicant would suffer irreparable harm if the relief is not granted; and 3) whether the balance of convenience is in favour of granting the stay.

[37]            In any event, the appeal before the Ontario Court of Appeal seems to be limited to a consideration of whether Justice Benotto erred in declining to exercise her jurisdiction to hear Mr. Zundel's application. Mr. Zundel has not demonstrated on a balance of probabilities that the Ontario Court of Appeal will actually be determining the constitutionality of the relevant provisions of the IRPA at the appeal. On January 15, 2004, the appellant appeared before the Honourable Justice Moldaver of the Ontario Court of Appeal on a motion to file a factum exceeding 30 pages in length for the above-mentioned appeal. Justice Moldaver denied the motion stating:

I see the appeal to this Court as being narrow in focus, that is, did Justice Benotto err, in the exercise of her discretion in declining jurisdiction. To argue that matter, I am not persuaded that a factum of more than 30 pages is required. Accordingly, the application is dismissed, without prejudice to renew it should the Applicant obtain an order from this Court expanding the breadth of the Appeal. [emphasis added]

Therefore, there is no serious issue to be tried.

[38]            Because on the evidence before this Court there is no serious question to be tried, it is unnecessary to review the other parts of the test. Mr. Zundel's motion to stay the review of the reasonableness of the certificate pending the hearing before the Ontario Court of Appeal should be dismissed.

VI. Conclusion

[39]            As agreed by the parties, the respondent's motion for an order striking Her Majesty the Queen as respondent and adding the Minister and Solicitor General is granted. For the reasons given, the respondent's motion to quash Mr. Zundel's appeal from the designated judge's decision not to disclose additional information is also granted with costs.

[40]            Mr. Zundel's motion to stay the review of the certificate pending the appeal before the Ontario Court of Appeal is dismissed for the reasons above with costs.

                                                                        "J. EDGAR SEXTON"              

                                                                                                      J.A.

"I agree

    B.L. Strayer J.A."

"I agree

    John M. Evans J.A."     

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  A-18-04

STYLE OF CAUSE: ERNST ZUNDEL and HER MAJESTY THE QUEEN

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   WEDNESDAY JANUARY 28,2004

REASONS FOR JUDGMENT BY: SEXTON J.A.

CONCURRED IN BY:                                  STRAYER & EVANS JJ.A.

DATED:                     APRIL 1, 2004

APPEARANCES:

Mr. Peter Lindsay

Ms. Chi- Kun Shi                                              FOR THE APPELLANT

Mr. Donald MacIntosh                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Peter Lindsay                                              FOR THE APPELLANT

Toronto, Ontario

Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice

Toronto ON                                                      FOR THE RESPONDENT