Digests

Jaballah (Re)

DES-4-01

2001 FCT 1287, MacKay J.

23/11/01

22 pp.

Preliminary determination of issues raised by respondent Jaballah in response to a reference under Immigration Act, s. 40.1(3) for a determination whether a certificate of applicant Ministers' (Minister of Citizenship and Immigration and Solicitor General of Canada) opinion concerning respondent reasonable on basis of evidence available in Court, sitting as judge designate or whether danger certificate should be quashed--Certificate, based on security intelligence reports, to effect respondent, not Canadian citizen but Convention refugee claimant, member of inadmissible class of persons on basis reasonable grounds to believe will, while in Canada, engage or instigate in subversion by force of government of Egypt; member of Al Jihad organization in respect of which reasonable grounds to believe will engage or instigate in subversion by force of government of Egypt or will engage in terrorism; has engaged in terrorism; member of Al Jihad organization in respect of which reasonable grounds to believe is or was engaged in terrorism--Proceedings unusual in that present second certificate with respect to Jaballah, issued for same general purposes, first having been found unreasonable by F.C. judge (Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (Jaballah No. 1))--Respondent detained since second certificate issued in August 2001--Ministers' evidence considered in camera and ex parte--Court-approved summary statement of circumstances giving rise to certificate provided to respondent--Subpoenas duces tecum issued to Ministers on behalf of respondent--As rule subpoenas must be obeyed, even by Ministers, unless set aside by Court--Challenge to subpoena herein raising issue of relevance of any testimony Ministers might be asked to give in answer to questions put to them--Questioning background knowledge or intent of Ministers at time of decision to issue second certificate would merely be fishing expedition--Evidence which might be obtained thereby would not be relevant to determination Court must make as to reasonableness of certificate on basis of evidence and information available to designated judge--Signature and filing of certificate done in exercise of ministerial discretion--Administrative actions undertaken in discharge of statutory responsibilities vested by Parliament in interests of security of state--Subpoenas set aside without prejudice to issuing of further subpoenas by respondent--As to jurisdictional issues--Second certificate expressing same opinion with respect to respondent's admissibility, by reference to same provisions of Act--Issue of "new evidence" available to Ministers cannot be resolved at preliminary stage--Court having refrained from reading Jaballah No. 1 and from comparing summary statements, no basis to assess whether new evidence provided to Ministers take case outside application of principles of res judicata or of issue estoppel, and no basis to assess whether proceeding may ultimately be judged abuse of process--Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 not applicable herein as requirement for reasons fully met by public statement provided to respondent summarizing evidence and information upon which Ministers relied, excluding security classified information available to them and submitted to Court at in camera ex parte hearing--Whether that statement, and other evidence provided to Ministers and examined by Court providing reasonable basis for opinion of Ministers issue to be determined by Court--As Court not now able to assess whether new evidence to support second certificate, respondent's motion for stay dismissed--Applicants directed to provide respondent with statement setting out new evidence referred to in summary statement provided in regard to August 2001 certificate not included in previous summary statement issued in 1999--Substantive constitutional issues same as in Canada (Minister of Citizenship and Immigration) v. Mahjoub (2001), 13 Imm. L.R. (3d) 33 (F.C.T.D.)--Some of substantive issues raised by respondent appear to have been resolved with respect to proceedings under Act, s. 40.1 by Ahani v. Canada, [1995] 3 F.C. 669 (T.D.) where Court concluded Act, s 40.1 did not infringe or deny rights guaranteed by Charter, ss. 7, 9, 10(c), or by Bill of Rights, s. 2(e)--Substantive constitutional issues raised as preliminary issues not argued before Court; if respondent wished to argue those issues, that would be done at time following initial hearing--As to whether in process of hearing pursuant to Act, s. 40.1(4), Court considering itself bound by constitutional norms--Court not prepared to respond to questions concerning process, or to agree to specified suggestions as to its responsibilities without argument about those issues--However, general response that Court, in conduct of proceedings, within framework specified by Act, s. 40.1, bound by constitutional norms and values including those under Charter--If clarification of application of constitutional norms and values in these proceedings desired in relation to specific issues, those may be raised and argued at future hearings--As to procedural issues--If Court were not to stay proceeding at this stage, respondent raising procedural issues, seeking order for disclosure, including orders of directions to release edited version of what is different before Court from Trial Judge in 1999; compelling applicant to provide further disclosure, compelling attendance of certain persons and release of tapes or notes of officers who interviewed either respondent or third parties concerning respondent; payment of costs by Ministers on solicitor-client basis in any event--No evidence to support Jaballah's request for Rowbotham Order (see (1988), 41 C.C.C. (3d) (Ont. C.A.)) or some other basis for support for continuing services--Court declining to make any order on this request--As to costs, within Court's discretion to award costs at conclusion of proceedings, in accord with Federal Court Rules, 1998--Indeed, since hearing on November 1, 2001, McKeown J. has ordered that Jaballah shall have his costs on party-and-party basis which were incurred in Jaballah No. 1--Order issued directing that counsel for Ministers provide counsel for respondent name of CSIS officers knowledgeable about summary public statements provided to Jaballah herein and in Jaballah No. 1; list of all officers of CSIS, RCMP and any other public servants of government of Canada who have interviewed Jaballah or others about him, unless revealing names of those others would reasonably be seen to place them in jeopardy, and list should indicate dates of interviews and whether tapes, notes or written reports available--Parties invited to make further submissions on respondent's request for edited version of what is different between matters before Court now and in Jaballah No. 1--Motion for order releasing contents of CSIS report ordered held from respondent by pro forma order of MacKay J. dismissed on ground disclosure would be injurious to national security or safety of persons--Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 3; S.C. 1992, c. 49, s. 31)--Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 9, 10(c)--Canadian Bill of Rights, R.S.C., 1985, Appendix III, s. 2(e).