Ahani v. Canada
T-1767-98
Rothstein J.
17/2/99
9 pp.
Motion to strike portions of plaintiff's statement of claim seeking declaration certain provisions of Immigration Act of no force and effect under Constitution Act, 1982, s. 52(1)-Plaintiff entering Canada on October 14, 1991, claimed Convention refugee status-Convention refugee claim granted-Plaintiff found inadmissible under Immigration Act, s. 40.1(1) as person described in anti-terrorism provisions of Immigration Act-Remained in custody since June 1993-On December 24, 1993, plaintiff commenced action challenging constitutional validity of s. 40.1 based on Charter, s. 7-Procedures under s. 40.1 found to be constitutionally valid-Minister issuing opinion plaintiff constituted danger to security of Canada on August 12, 1998-Action commenced on September 9, 1998 challenging constitutional validity of anti-terrorism provisions of Immigration Act, ss. 19(1), 53(1)(d)-Plaintiff, in 1993, brought Charter challenge against s. 40.1-S. 40.1 incorporating by reference anti-terrorism provisions of s. 19(1) being challenged in present action-Anti-terrorism provisions of s. 19(1) integral part of statutory scheme in s. 40.1-Plaintiff could have brought same issues before Court in 1993 action that he sought to advance in instant action-Estopped from doing so-Matter res judicata-To acquiesce in challenge to anti-terrorism provisions of s. 19(1) would be to permit abuse of process-Plaintiff cannot litigate by instalments-Once elected to challenge s. 40.1 which incorporates anti-terrorism provisions of s. 19(1), plaintiff obliged to bring forward all relevant arguments-Failed to do so at own peril-Defendants' motion to strike paragraph 2 of plaintiff's statement of claim challenging anti-terrorism provisions of Immigration Act granted-Motion to strike last sentence of paragraph 9 of statement of claim also granted-Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1) (as am. by S.C. 1992, c. 49, s. 11), 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31), 53(1)(d) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 14; S.C. 1992, c. 49, s. 43)-Canadian Charter of Rights and Freedoms, being Part I 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, 52(1).