2004 FCA 257
A-287-03
The Minister of Citizenship and Immigration and The Solicitor General of Canada (Appellants) (Applicants in the Trial Division)
v.
Mahmoud Jaballah (Respondent) (Respondent in the Trial Division)
A-288-03
Mahmoud Jaballah (Appellant) (Respondent in the Trial Division)
v.
The Minister of Citizenship and Immigration and The Solicitor General of Canada (Respondents) (Applicants in the Trial Division)
Indexed as: Jaballah (Re) (F.C.A.)
Federal Court of Appeal, Linden, Rothstein and Sexton JJ.A.--Toronto, June 23; Ottawa, July 13, 2004.
Citizenship and Immigration -- Exclusion and Removal -- Inadmissible Persons -- Appeal, cross-appeal from decision of designated Federal Court Judge deeming pre-removal risk assessment final and resuming security certificate proceedings -- Jaballah, subject of security certificate issued by Ministers, brought protection application under Immigration and Refugee Protection Act (IRPA), s. 112, resulting in suspension of security certificate proceedings -- Judge found 10-month delay by Minister of Citizenship and Immigration (MCI) in deciding protection application constituted abuse of process, ordered pre-removal risk assessment be deemed final assessment for purposes of protection application -- Judge resumed security certificate proceedings, found certificate reasonable -- Ministers appealed abuse of process finding and order regarding risk assessment -- Jaballah cross-appealed decision to resume security certificate proceedings -- Given lack of foreseeable end to delay, Jaballah's continued detention, open to Judge to find MCI's delay constituted abuse of process -- Remedy to abuse of process discretionary decision; only overturned where wrongful exercise of discretion -- Here, Judge had before him substantive assessment, and reasonable period elapsed with nothing forthcoming, thus open to Judge to require MCI to treat risk assessment as final -- MCI still free to make decision on Jaballah's protection application -- If stay of removal order granted based on deemed final assessment, still open to MCI to cancel stay if change in circumstances -- Appeal dismissed -- Resumption of security certificate procedure not consistent with IRPA, ss. 79(2), 80 requiring resumed security certificate proceedings involve consideration of certificate and protection decision -- Reasonableness of certificate not to be decided until lawfulness of protection decision determined -- Common law doctrine of abuse of process not overriding express statutory provisions -- Cross-appeal allowed.
These were appeals and a cross-appeal from the decision of a designated Federal Court Judge. The impugned decision stemmed from security certificate proceedings (commenced following the issuance of a security certificate by the Minister of Citizenship and Immigration (MCI) and the Solicitor General of Canada (together "the Ministers")) during the course of which Jaballah brought a protection application under section 112 of the Immigration and Refugee Protection Act (IRPA). The Judge suspended the security certificate proceedings on July 11, 2002 pending the MCI's determination of the protection application. On March 14, 2003, leave was granted to Jaballah to file a motion alleging abuse of process by the MCI who had still not made a decision regarding that application. On May 23, 2003, the decision under appeal was issued. The Judge found that delay by the MCI in deciding the protection application constituted an abuse of process. He ordered that the risk assessment of a pre-removal risk assessment (PRRA) officer be deemed to be the final assessment of the risk to Jaballah for the purposes of the protection application. The Judge also resumed consideration of the security certificate without waiting for the MCI to decide the protection application (the protection decision was issued only in December 2003), and found the certificate to be reasonable. The Ministers appealed, arguing the Judge erred in finding an abuse of process and in providing a remedy for that abuse that departed from the statutory scheme of the IRPA. Jaballah cross-appealed and brought a separate appeal saying the Judge should not have resumed the security certificate proceedings.
The issues were: (1) whether a certified question was necessary to give the Court jurisdiction; (2) whether the designated Judge erred in finding that the MCI's delay in deciding the protection application constituted an abuse of process; and (3) whether the remedies granted were a reasonable response to that abuse.
Held, the Ministers' appeal should be dismissed; Jaballah's cross-appeal should be allowed.
(1) Because security certificate proceedings are not a judicial review, it was not necessary for the Judge to certify a question of general importance pursuant to paragraph 74(d) of IRPA. Also, because at issue here was not the Judge's substantive finding that the security certificate was reasonable, the appeal was not precluded by section 80(3) of IRPA.
(2) Contrary to the Ministers' argument for reviewing the abuse of process finding, the Judge took more than delay into account. In addition to simple delay, he was concerned that there was prejudice to Jaballah. Also contrary to the Ministers argument, the need to obtain assurances from the Government of Egypt did not render the delay reasonable. Given the lack of any foreseeable end to the delay and Jaballah's continued detention in solitary confinement, it was open to the Judge to find that the MCI's delay in issuing a protection decision and the resulting indefinite suspension of the Court's consideration of the security certificate constituted an abuse of process.
(3) The Judge also did not err in ordering that the PRRA officer's risk assessment be deemed to constitute the final assessment of the risk to Jaballah. This remedy did not amount to a complete stay of proceedings that would constitute a quashing of the proceedings, as argued by the Minister. The MCI was still free to make a decision on Jaballah's protection application. In remedying abuses of their process, courts are to be flexible and provide a remedy suitable to the circumstances. This is a discretionary decision and only where there has been a wrongful exercise of discretion in that no weight, or no sufficient weight has been given to relevant considerations, will an appellate court overturn such a decision. This was not the case here. The Judge had before him a substantive assessment of the risk facing Jaballah if removed from Canada. It was open to him to require the MCI to treat that as the final risk assessment since, after a reasonable period (in this case, ten months after the application for protection and eight months after being advised that the MCI was seeking assurances from the Government of Egypt), nothing else was forthcoming. The fact that a decision to grant protection may be based on incomplete information (as the MCI believed the risk assessment to be) and results in a stay of a removal order is not a problem. It would still be open to the MCI to cancel the stay, under subsection 114(1) of IRPA, if the circumstances surrounding the stay have changed. The protection decision would be subject to an application for leave and, if leave is granted, judicial review. For these reasons, the remedy ordered by the Judge was not precluded by the statutory scheme and was a proper exercise of the Judge's discretion.
The Judge's resumption of the security certificate procedure was not consistent with the requirements of the IRPA, which precludes a resumption of the security certificate proceedings without the judge having received notice of a protection decision. Under subsection 79(2) of IRPA, the resumed security certificate proceedings must involve consideration of both the certificate and the protection decision. Under subsection 80(1) a designated Judge must determine (1) whether the certificate is reasonable and (2) whether the protection decision was lawfully made. This interpretation is supported by the procedure in subsection 80(2), under which the Judge cannot decide the reasonableness of the security certificate until he determines that the MCI has made a lawful protection decision. Although the Judge was entitled to exercise discretion, in the absence of a constitutional challenge, the common law doctrine of abuse of process cannot override express statutory provisions enacted by Parliament. Furthermore, under the process envisaged by the Judge, once the protection decision was made, leave for judicial review would be required and an appeal from the judicial review of this Court might be taken. Neither the leave requirement nor the possibility of appeal in respect of the reasonableness of the certificate or the lawfulness of the MCI's decision on the application for protection made under subsection 112(1) are anticipated or provided for by sections 79 and 80 of IRPA. The Judge's finding that the security certificate is reasonable was set aside, and it was determined that the judicial review of the MCI's December 2003 protection decision, scheduled to take place in August 2004, should not proceed because that decision should have been dealt with under sections 79 and 80 of IRPA. Both matters (reasonableness of the security certificate and lawfulness of the protection decision) were remitted to the Federal Court for redetermination.
Jaballah's separate appeal, based solely on incompetence of prior counsel, was moot in view of the Court's determination of the cross-appeal and therefore was not decided.
statutes and regulations judicially
considered
Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31).
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 72(1), 74(d), 76 (as am. by S.C. 2002, c. 8, s. 194), 77 (as am. idem), 78, 79 (as am. idem), 80, 81, 82(2), 84, 97, 112, 113(d)(ii), 114(1),(2), 187, 190. |
| Immigration and Refugee Protection Regulations, SOR/2002-227, s. 172. |
cases judicially considered
considered:
Jaballah (Re), [2003] 3 F.C. 85; (2002), 224 F.T.R. 20; 2002 FCT 1046; Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (T.D.) (QL).
referred to:
Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; (1997), 151 D.L.R. (4th) 119; 1 Admin. L.R. (3d) 1; 118 C.C.C. (3d) 443; 14 C.P.C. (4th) 1; 10 C.R. (5th) 163; 40 Imm. L.R. (2d) 23; 218 N.R. 81; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77; (2003), 232 D.L.R. (4th) 385; 17 C.R. (6th) 276; 311 N.R. 201; 179 O.A.C. 291; 2002 SCC 63; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Charles Osenton & Co. v. Johnston, [1942] A.C. 130 (H.L.).
APPEAL and CROSS-APPEAL from the decision of a designated Federal Court Judge ([2003] 4 F.C. 345; (2003), 23 Imm. L.R. (3d) 216) finding that delay by the Minister of Citizenship and Immigration (MCI) in deciding a protection application constituted an abuse of process, ordering that the risk assessment of a pre-removal risk assessment officer be deemed to be the final assessment for the purposes of the protection application, resuming consideration of a security certificate without waiting for the MCI to decide the protection application, and finding the certificate to be reasonable. Appeal dismissed; cross-appeal allowed.
appearances:
Donald A. MacIntosh, David W. Tyndale and Mielka Visnic for appellants in A-287-03, respondents in A-288-03.
John R. Norris and Barbara L. Jackman for respondent in A-287-03, appellant in A-288-03.
solicitors of record:
Deputy Attorney General of Canada for appellants in A-287-03, respondents in A-288-03.
Ruby & Edwardh, Toronto, and Barbara Jackman, Toronto, for respondent in A-287-03, appellant in A-288-03.
The following are the reasons for judgment rendered in English by
Rothstein J.A.:
OVERVIEW
[1]This is an appeal by the Minister of Citizenship and Immigration ( MCI ) and the Solicitor General of Canada (together the Ministers) from a May 23, 2003 [[2003] 4 F.C. 345 (T.D.)], decision of a designated Federal Court Judge. The respondent cross-appeals and brings a separate appeal of the same decision.
[2]The Judge was conducting a review of a security certificate issued by the Ministers in respect of the respondent but had suspended the security certificate proceedings pending a determination by the MCI of a protection application brought by the respondent. A protection application involves two risk assessments. One relates to the risk faced by the individual if removed from Canada while the other assesses the risk the individual poses to the security of Canada. Based on these two risk assessments and any submissions made by the individual, the Minister decides the protection application.
[3]The designated Judge found that delay by the MCI in deciding the protection application constituted an abuse of process. In providing a remedy for the abuse of process, the designated Judge ordered that the risk assessment of a pre-removal risk assessment (PRRA) officer, finding that the respondent would be at risk of torture, death or cruel and unusual treatment or punishment if he was returned to Egypt, be deemed to be the final assessment of the risk to the individual for the purposes of the protection application. Due to the delay, he also resumed consideration of the security certificate without waiting for the MCI to decide the protection application. He then found the certificate to be reasonable.
[4]The Ministers say that the designated Judge erred in finding an abuse of process and in providing a remedy for that abuse which departed from the statutory scheme under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The respondent both cross-appeals and brings a separate appeal saying, among other things, that while this Court should not interfere with the finding of abuse of process by the designated Judge and his treatment of the PRRA officer's risk assessment, he should not have resumed the security certificate proceedings and arrived at a conclusion as to the certificate's reasonableness.
FACTS
[5]These appeals involve rather complex procedures under IRPA. I restrict my recitation of the facts only to those necessary to address the issues on the appeals:
| 1. May 11, 1996 |
| Mahmoud Jaballah arrived in Canada with his wife and four children and claimed Convention refugee status. |
| 2. March 14, 1999 |
| The Immigration and Refugee Board (Convention Refugee Determination Division) determined Jaballah and his family were not Convention refugees. |
| 3. March 31, 1999 |
| The Ministers issued a security certificate under section 40.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4; S.C. 1992, c. 49, s. 31] of the Immigration Act, R.S.C., 1985, c. I-2, alleging that Jaballah was a member of Al Jihad, a terrorist organization with connections to Al-Qaida. |
| 4. November 2, 1999 |
| Cullen J. [[1999] F.C.J. No. 1681 (T.D.) (QL)] quashed the certificate on the grounds that it was not reasonable. |
| 5. August 14, 2001 |
| The Ministers issued a second security certificate allegedly on the basis of new evidence of Jaballah's involvement in Al Jihad. |
| 6. March 11, 2002 |
| After several procedural motions and other proceedings, the hearing as to the reasonableness of the security certificate was resumed. |
| 7. June 28, 2002 |
| IRPA came into force. Pursuant to section 190, the security certificate proceedings were continued as if they had been commenced under the IRPA. |
| 8. July 1, 2002 |
| Jaballah requested that the security certificate proceedings be suspended pursuant to subsection 79(1) of IRPA pending determination of an application for protection to the MCI under subsection 112(1) of IRPA. |
| 9. July 11, 2002 |
| The security certificate proceedings were suspended. |
| 10. August 15, 1002 |
| The assessment of the risk Jaballah could face if returned to Egypt was completed by a PRRA officer and was released, allegedly in error, to Jaballah. That risk assessment determined that Jaballah would be at risk of torture, death or cruel or unusual treatment or punishment if he was returned to Egypt. |
| 11. August 28, 2002 |
| A conference call was initiated by the designated Judge with counsel in which Ministers' counsel advised that the process of completing the MCI's protection decision could take up to three more months. |
| 12. October 8, 2002 |
| Decision of designated Judge denying various relief sought by Jaballah arising from delay in the MCI's protection proceedings, but urging the MCI to complete his assessment of Jaballah's application for protection and to advise Jaballah and the Court of that assessment in accordance with subsection 79(2) [as am. by S.C. 2002, c. 8, s. 194] as soon as possible. |
| The designated Judge [[2003] 3 F.C. 85 (T.D.)] indicated his concern [at paragraph 32] "that . . . Jaballah's situation remains unresolved while he continues to be detained, now for a period of nearly 14 months." |
| 13. November 20, 2002 |
| A conference call with counsel was initiated by the designated Judge in which he enquired as to the progress being made by the MCI and asked counsel for the MCI to convey to his client the importance of making a decision quickly. |
| 14. November 25, 2002 to April 8, 2003 |
| Various communications between the Government of Canada and the Government of Egypt wherein the Government of Canada sought assurances from the Government of Egypt that Jaballah would not be subject to torture, death or cruel or unusual treatment if he was deported to Egypt. Apparently, the assurances provided were not satisfactory to the Government of Canada. |
| 15. March 14, 2003 |
| The designated Judge initiated a conference call with counsel in which counsel for the MCI was unable to indicate when notice of a decision on Jaballah's protection application would be given. The designated Judge granted leave to Jaballah to file a motion alleging abuse of process by the MCI. |
| 16. March 18, 2003 |
| The designated Judge ordered a hearing to be held on April 11, 2003, to deal with Jaballah's motion arising out of delay by the MCI in issuing a protection decision. |
| 17. April 11, 2003 |
| The designated Judge heard submissions on Jaballah's abuse of process motion. |
| 18. May 23, 2003 |
| The decision which is under appeal is issued by the designated Judge. He finds that the delay by the MCI in rendering a decision on Jaballah's application for protection while Jaballah was detained in solitary confinement for over two years with no possibility of review constituted an abuse of process. By way of remedy, he deemed the August 15, 2002, PRRA officer's risk assessment to be the final assessment of the risk facing Jaballah if he were returned to Egypt. He also found that the security certificate was reasonable. |
THE MINISTERS' APPEAL
ISSUES
[6]The issues on the Ministers' appeal are:
1. whether this Court should interfere with the decision of the designated Judge finding an abuse of process; and
2. if not, whether the designated Judge's deeming the PRRA officer's risk assessment to be the final assessment of the risk to Jaballah for the purposes of the protection application was an appropriate remedy for the abuse of process.
ANALYSIS
| A. Is a certified question necessary to give this Court jurisdiction to consider this appeal? |
[7]The decision of the designated Judge was made in the course of security certificate proceedings under sections 79 and 80 of IRPA. Such proceedings are not a judicial review. Therefore, paragraph 74(d) of IRPA, which precludes an appeal to this Court from a judicial review decision unless a Federal Court Judge certifies a question of general importance, is not applicable.
[8]A decision by a designated judge made under section 80 is subject to the privative clause in subsection 80(3) which precludes any appeal or judicial review of that decision. However, the substantive finding of the designated Judge that a security certificate is reasonable is not being reviewed in this case. Rather, this case is about whether the Judge erred in finding that the MCI's delay in deciding the application for protection constituted an abuse of process and whether the remedies granted were a reasonable response to that abuse. Such determinations are not protected from review by subsection 80(3) (see Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at paragraph 50).
| B. Did the designated Judge err in finding an abuse of process? |
[9]The Minister appears to make three arguments as to why this Court should review the abuse of process finding of the designated Judge:
1. the designated Judge only took delay into account and did not consider other factors as he was required to do;
2. the delay was reasonable, given the need to obtain assurances from the Government of Egypt that Jaballah would not be killed or subjected to torture or cruel and unusual treatment if returned to Egypt; and
3. the designated Judge's ordered relief was tantamount to a stay of proceedings, a remedy which was not warranted by the circumstances.
[10]Only the first two arguments are relevant to whether there has been an abuse of process. The third goes to what remedy is appropriate once an abuse of process is found.
[11]As to the first argument, I will accept, for purposes of this appeal, that more than mere delay has to be found by the designated Judge in order to justify a finding of an abuse of process. However, it is factually inaccurate to say, as the Ministers do, that the designated Judge only took delay into account here.
[12]Indeed, they acknowledge in their factum (paragraph 85) that the designated Judge was concerned that Jaballah continued to be detained indefinitely in solitary confinement without any possibility of release (as detention reviews would only commence after the security certificate had been found to be reasonable). Accordingly, in oral argument, counsel for the Ministers acknowledged, as he had to, that, in addition to simple delay, there was prejudice to Jaballah.
[13]Regarding the second argument, the designated Judge was concerned that the MCI's delay was not adequately explained and that no reasonable forecast was given about when the protection decision would be rendered. On at least three occasions, the designated Judge had communicated with counsel to express concern that the decision should be issued quickly. Indeed, this Court was advised that the protection decision was issued only in December 2003, some 18 months after Jaballah's protection application was made, and some 7 months after the designated Judge issued his May 23, 2003, decision. This Court was advised that even by December 2003, assurances from the Government of Egypt, relative to the risk of torture, death or cruel and unusual treatment Jaballah would face if he was deported to Egypt, were not satisfactory to the Government of Canada.
[14]Given the lack of any foreseeable end to the delay and Jaballah's continued detention in solitary confinement, it was open to the designated Judge to find that the MCI's delay in issuing a protection decision and the resulting indefinite suspension of the Court's consideration of the security certificate constituted an abuse of the Court's process.
| C. Did the designated Judge err in deeming the PRRA officer's risk assessment to be the final assessment of the risk to Jaballah if removed from Canada? |
[15]I will first explain my understanding of the procedure under the IRPA. I will then deal with why the designated Judge's decision on the August 15, 2002, risk assessment was one that was open to him.
[16]The procedure required by IRPA is, in part, set out in an October 8, 2002, decision of the designated Judge, [2003] 3 F.C. 85 (T.D.), at paragraph 27. I agree with his analysis and I adopt it in my analysis of the statutory scheme.
1. Under subsection 77(1) [as am. by S.C. 2002, c. 8, s. 194], the Ministers may refer a security certificate to a designated judge of the Federal Court to make a determination of its reasonableness.
2. The procedure to be followed by the designated judge is set forth at section 78. Paragraph 78(c) provides that the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.
3. Under section 112, a person named in a security certificate may make an application for protection to the MCI. Under paragraph 81(c), the application must be made before the certificate is determined to be reasonable.
4. Subsection 79(1) directs that the designated judge shall suspend the security certificate proceedings if the individual in question makes an application for protection to the MCI under subsection 112(1) and either the MCI or the individual requests that the certificate proceedings be suspended.
5. Subparagraph 113(d)(ii) provides that in deciding whether to grant protection to a person named in a security certificate, the MCI must weigh the risks to the individual of torture, death or cruel and unusual treatment or punishment if he is returned to his country of nationality against the danger that the individual constitutes to the security of Canada.
6. Before the MCI makes a decision, subsection 172(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 requires two written assessments to be given to the individual: (1) an assessment of the risk to the individual if removed from Canada; and (2) an assessment of the individual's risk to the security of the Canada. Subsection 172(1) of the Regulations then gives the individual 15 days to respond in writing to the assessments. It then requires the MCI to consider the assessments and any response made by the individual in deciding the application for protection.
7. Pursuant to subsection 79(2) of IRPA, once the application for protection has been decided, the MCI shall give notice of that decision to the individual and the designated judge. The judge shall then resume the security certificate proceedings and review the lawfulness of the MCI's protection decision as well as the reasonableness of the security certificate.
8. Pursuant to subsection 80(1), the designated judge is required to determine whether the security certificate is reasonable and whether the MCI's protection decision is lawful. Under subsection 80(2), the judge shall quash the security certificate if he is of the opinion that it is not reasonable. If the security certificate is not quashed, but the MCI's protection decision is found not to be lawfully made, the MCI's protection decision is to be quashed. The security certificate proceedings are then again suspended to allow the MCI to make a new decision on the application for protection.
9. Paragraph 81(b) provides that if a security certificate is determined to be reasonable by the designated judge, it constitutes a removal order that is in force and which may not be appealed.
10. However, subsection 114(1) provides that in the case of an individual named in a security certificate found to be reasonable, the MCI's decision to allow the application for protection has the effect of staying the removal order.
11. If the MCI is of the opinion that circumstances have changed, subsection 114(2) allows the MCI to cancel the stay, subject to judicial review.
The relevant provisions referred to in these reasons are set out in Appendix A.
[17]After finding that the MCI's delay constituted an abuse of process, the designated Judge ordered that the PRRA officer's August 15, 2002, risk assessment, finding that Jaballah would be at risk of torture, death or cruel and unusual treatment or punishment if he was deported to Egypt, be deemed to constitute the final assessment of the risk to Jaballah required to be conducted by paragraph 113(d) of IRPA and paragraph 172(2)(a) of the Regulations.
[18]The Ministers characterized this remedy as analogous to a stay of proceedings because it prevented the MCI from taking account of assurances that might be obtained from the Government of Egypt that Jaballah would not be at risk of torture, death or cruel or unusual treatment or punishment. However, the remedy ordered by the designated Judge does not rise to the level of a complete stay of proceedings that constitutes a quashing of the proceedings. Indeed, Jaballah requested that relief and the designated Judge refused to grant it. On the contrary, the MCI was still free to make a decision on Jaballah's protection application.
[19]In remedying abuses of their process, courts are to be flexible and provide a remedy that is suitable to the circumstances (see Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, at paragraphs 35-37). The decision of how best to remedy an abuse of process is a discretionary one. An appellate court may only overturn such a decision if it "reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations" (Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at page 76, quoting Charles Osenton & Co. v. Johnston, [1942] A.C. 130 (H.L.), at page 138). It has not been demonstrated that the designated Judge took into account irrelevant factors or failed to take into account or accorded insufficient weight to relevant ones.
[20]In their factum, the Ministers concede that it would have been open to the designated Judge to order "that the Minister complete his determination as to the application for protection within a prescribed time that he thought was reasonable." I agree that would have been open to the Judge. But it must also follow that, if the Minister does not comply with such an order, the Judge is not powerless to enforce it. Indeed, in oral argument, counsel suggested it would be open to hold the Minister or perhaps his officials in contempt. But alternatively, if there has been delay which the designated Judge considers excessive, I do not see why the designated Judge could not order the MCI to advise him as to the status of the protection analysis as of a certain date, even if the MCI did not consider that her risk assessment as of that date had been completed. After all, under paragraph 78(c), the Judge is under a duty to proceed expeditiously. Therefore, the Judge must be in a position to deal practically with delay by the MCI.
[21]I do not say that the designated Judge may make his own risk assessment for the purposes of paragraph 113(d) of IRPA and paragraph 172(2)(a) of the Regulations. But if, as here, a risk assessment prepared for the MCI is before the Judge and it is a substantive assessment of the risk facing the individual if he is removed from Canada, I think it is open to the Judge to require the MCI to treat that as the final assessment of the risk to the individual if, after a reasonable period, nothing else is forthcoming. In this case, the learned Judge, on at least three occasions, reminded Ministers' counsel that he was concerned about delay and encouraged the MCI to issue his protection decision. The Judge did not issue his decision until he determined nothing was forthcoming from the MCI some ten months after the application for protection was made and eight months after he was advised that the MCI was seeking assurances from the Government of Egypt.
[22]I am not troubled that a judge would deem a final assessment of the risk to the individual to have been made on what the MCI considers to be incomplete information. If a decision to grant protection is based on incomplete information and results in a stay of a removal order, it is still open to the MCI, under subsection 114(1), if the circumstances surrounding the stay have changed, to cancel the stay. The MCI is, therefore, not without a remedy should new information come to her attention even though the protection decision was based on what she considers to be incomplete information. That decision would be subject to an application for leave and, if leave is granted, judicial review in the ordinary course under IRPA. In the particular circumstances of this case, if the MCI were to obtain assurances from the Government of Egypt satisfactory to her, such information could well constitute a change of circumstances contemplated by subsection 114(2) enabling her, if appropriate, to cancel the stay, subject to judicial review.
[23]In view of the circumstances with which the designated Judge was faced, I am satisfied that the remedy of deeming the PRRA officer's report to be the final assessment of the risk to Jaballah if he is removed from Canada was not precluded by the statutory scheme and was a proper exercise of the Judge's discretion. I would not disturb that decision.
D. Costs
[24]The Ministers also appeal an award of solicitor-and-client costs made against them in respect of the hearing on April 11, 2003. Present counsel for Jaballah concedes that this award of costs cannot be sustained. On consent, the appeal of the award of solicitor-and-client costs should therefore be allowed.
JABALLAH'S CROSS-APPEAL
[25]In response to his finding that the MCI's delay in deciding the protection application constituted an abuse of process, the designated Judge also resumed the security certificate proceedings without waiting for the MCI to decide the protection application. He did this in order to ensure that Jaballah would either be released if the certificate was found to be unreasonable or at least would have access to the subsection 84(2) detention review mechanism which only becomes available 120 days after the certificate is found to be reasonable.
[26]Jaballah argues in his cross-appeal that the designated Judge's resumption of the security certificate procedure was inconsistent with the express provisions of IRPA. I sympathize with the designated Judge's frustration in trying to expedite the matter. However, I am of the respectful view that the process he adopted was not one consistent with the requirements of the legislation.
[27]While I acknowledge that judges must be given broad discretion to control the process of the Court and deal with abuse of that process, I do not think that the common law doctrine of abuse of process can override express statutory provisions enacted by Parliament. Certainly, where statutory provisions provide leeway for the exercise of discretion by a Judge, the Judge may exercise that discretion as I think the designated Judge did in respect of the PRRA officer's risk assessment. However, in the absence of a constitutional challenge, a Judge may not act in contravention of express legislative provisions in order to remedy an abuse of process.
[28]In this case, Jaballah's application for protection had not been decided by the MCI when the designated Judge resumed his consideration of the security certificate or even when he found it to be reasonable. As I read the relevant provisions, they preclude a resumption of the security certificate proceedings without the judge having received notice of a protection decision. Under subsection 79(2), the resumed proceedings must involve consideration of both the certificate and the protection decision. Under subsection 80(1), there are two determinations to be made by the designated Judge: (1) whether the certificate is reasonable; and (2) whether the protection decision is lawfully made.
[29]As Jaballah's counsel pointed out in oral argument, this interpretation of subsections 79(2) and 80(1) is supported by the procedure in subsection 80(2). Under subsection 80(2), if the judge finds that a protection decision is not lawfully made, the proceedings in respect of the security certificate are to be suspended until the MCI makes a new decision on the application for protection. In other words, once an application for protection is made, the designated judge cannot decide the reasonableness of the security certificate until he determines that the MCI has made a lawful protection decision.
[30]The designated Judge was of the view that, in order not to delay proceedings further, he should make a decision on the reasonableness of the certificate. Later, when the MCI issued her protection decision, that decision could be the subject of a leave application and judicial review if leave was granted.
[31]However, the legislation contemplates not only that the same designated judge determine both the reasonableness of the security certificate and the lawfulness of the MCI's protection decision under subsection 80(1), but also that, under subsection 80(3), both decisions are not to be subject to appeal. Under the process envisaged by the designated Judge, once the protection decision was made, leave for judicial review would be required and an appeal from the judicial review to this Court might be taken. Neither the leave requirement nor the possibility of appeal in respect of the reasonableness of the certificate or the lawfulness of the MCI's decision on the application for protection made under subsection 112(1) are anticipated or provided for by sections 79 and 80 of IRPA.
[32]If the MCI grants the protection application and the designated judge finds the MCI's decision lawful and the security certificate reasonable, the protection application will act as a stay of the removal order effect of the security certificate. Under subsection 114(2), if circumstances change, the MCI may cancel the stay. Unlike a protection decision, a decision to cancel a stay of a removal order is not subject to the procedure in sections 79 and 80, and therefore would be subject to the ordinary leave and judicial review process applicable to other decisions made under IRPA.
[33]For these reasons, I am of the opinion that the decision of the designated Judge, finding the security certificate reasonable in this case, must be set aside. This Court has also been advised that the MCI's December 2003 protection decision was the subject of a successful leave application and a judicial review of that decision is now scheduled for August 2004. As the MCI's protection decision should not have been subject to leave and judicial review but instead should have been dealt with under sections 79 and 80, the judicial review scheduled for August 2004 should not proceed. The matter of the reasonableness of the security certificate and the lawfulness of the MCI's protection decision should be remitted to the designated Judge or another judge designated by the Chief Justice of the Federal Court for redetermination.
JABALLAH'S APPEAL
[34]Jaballah also brought a separate appeal from the designated Judge's decision. His present counsel has withdrawn all arguments made by prior counsel on the appeal and his argument is now based solely on incompetence of prior counsel. However, he takes the position that if the reasonableness decision in respect of the security certificate is set aside, it would be unnecessary for this Court to decide the issue of competency of prior counsel as the appeal will be moot.
[35]In view of my determination on Jaballah's cross-appeal, I am of the opinion that Jaballah's appeal is moot and that the issue of competency of counsel need not be decided.
CONCLUSION
[36]I would dismiss the Ministers' appeal in respect of the designated Judge's finding of abuse of process and the deeming of the PRRA officer's risk assessment to be the final assessment of the risk to Jaballah if he is removed from Canada. I would allow the appeal of the Ministers in respect of the award of solicitor-and-client costs.
[37]I would allow Jaballah's cross-appeal in respect of the designated Judge's departure from the requirements of IRPA, set aside the Judge's determination that the security certificate is reasonable and remit the matter to that Judge or another judge designated by the Chief Justice for the purpose of determining both the reasonableness of the security certificate and the lawfulness of the MCI's protection decision. I would dismiss Jaballah's separate appeal as moot. Costs of these appeals shall be in the cause.
Linden J.A.: I agree.
Sexton J.A.: I agree.
APPENDIX A
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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.
. . .
76. The definitions in this section apply in this Division.
"information" 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" means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
77. (1) The Minister and the Solicitor General of Canada shall sign a 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, which shall make a determination under section 80.
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the 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.
78. The following provisions govern the determination:
(a) the Judge shall hear the matter;
(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;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(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 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 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;
(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 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;
(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 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;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
(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.
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 certificate in order for the Minister to decide an application for protection made under subsection 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 Courts Act.
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the 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.
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
81. If a 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
(c) the person named in it may not apply for protection under subsection 112(1).
82. . . .
(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.
. . .
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
. . .
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
. . .
(3) Refugee protection may not result from an application for protection if the person
. . .
(d) is named in a certificate referred to in subsection 77(1).
113. Consideration of an application for protection shall be as follows:
. . .
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
. . .
(ii) . . . whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
114. (1) A decision to allow the application for protection has
. . .
(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.
(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.
. . .
187. For the purposes of sections 188 to 201, "former Act" means the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, and, where applicable, the regulations and rules made under it.
. . .
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
Immigration and Refugee Protection Regulations, SOR/2002-227
172. (1) Before making a decision to allow or reject the application of an applicant described in subsection 112(3) of the Act, the Minister shall consider the assessments referred to in subsection (2) and any written response of the applicant to the assessments that is received within 15 days after the applicant is given the assessments.
(2) The following assessments shall be given to the applicant:
(a) a written assessment on the basis of the factors set out in section 97 of the Act; and
(b) a written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act, as the case may be.
(3) The assessments are given to an applicant when they are given by hand to the applicant or, if sent by mail, are deemed to be given to an applicant seven days after the day on which they are sent to the last address that the applicant provided to the Department.
(4) Despite subsections (1) to (3), if the Minister decides on the basis of the factors set out in section 97 of the Act that the applicant is not described in that section,
(a) no written assessment on the basis of the factors set out in subparagraph 113(d)(i) or (ii) of the Act need be made; and
(b) the application is rejected.