Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2017-03-31
Neutral citation
2017 FC 334
File numbers
DES-7-08
Decision Content
Date: 20170331
Docket: DES-7-08
Citation: 2017 FC 334
Ottawa, Ontario, March 31, 2017
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA;
AND IN THE MATTER OF
Mohamed Zeki MAHJOUB
JUDGMENT AND REASONS
I. Nature of the Matter [1] On July 20, 2016, I allowed in part a Motion for review of conditions of release brought by Mr. Mohamed Zeki Mahjoub [the Applicant], who sought an order removing all but the usual conditions of release from those imposed on him pursuant to subsection 82(4) and paragraph 82(5)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). Service of the Applicant's Notice of Motion for such relief was followed by service of a Notice of Constitutional Questions, in which the Applicant proposed a number of constitutional issues. Instead of arguing these constitutional issues at the time of the Motion, the Applicant chose, with permission, to argue them at some later time. The hearing of the Motion, which was therefore restricted to the conditions of release, took place June 8 and 9, 2016. On July 20, 2016, because the Applicant had not yet filed submissions on either his proposed constitutional questions or questions he proposed to certify, and because I did not wish to further delay a decision on his conditions of release, I ordered the relaxation of several conditions of release, now reported as Re Mahjoub, 2016 FC 808 [2016 Conditions of Release Order].
[2] The Applicant filed submissions on the constitutional questions and proposed questions for certification on September 30, 2016, following which the Respondents filed their response. The Applicant served a Modified Notice of Constitutional Questions in advance of a hearing, which took place March 1 and 2, 2017, and dealt with his proposed questions to certify together with the constitutional questions. These Reasons deal with the modified constitutional questions and questions the Applicant asks this Court to certify.
II. Background [3] The background of this case and my various findings and conclusions are outlined in my reasons on the 2016 Conditions of Release Order, which include the following:
[21] The Applicant has a long history with this Court. In addition, the relevant legislation has evolved over time. Important aspects of his original detention, subsequent release on conditions, the many subsequent reviews of his conditions of release, together with the evolving statutory framework are well summarized by Justice Noël at paras 5 to 20 in Mahjoub (Re), 2015 FC 1232 (Conditions of Release decision, October 30, 2015). This decision is the most recent review of the Applicant’s many reviews of his conditions of release.
[22] The Applicant is an Egyptian national, born in April 1960. He came to Toronto, Canada, in the last days of December 1995, having arrived here on a false Saudi Arabian passport. He claimed refugee status, which the Immigration and Refugee Board granted in1996. He became a subject of interest to the Canadian Security Intelligence Service [“CSIS”] sometime in 1996. As a result of this investigation, he became the named person in a certificate issued by the Ministers in June 2000 and was arrested on June 26, 2000. He was in detention from 2000 to 2007; he was released in February 2007, under stringent conditions.
[23] Justice Nadon of the Federal Court of Canada (as he was then) determined that certificate to be reasonable on October 5, 2001. In the Reasons for Order, Justice Nadon noted that the Applicant admitted he had perjured himself by not admitting that he knew a certain individual. Justice Nadon concluded that he did not believe the Applicant’s explanation for lying and added that the Applicant had lied before his Court on a number of occasions (see Canada (Minister of Citizenship and Immigration) v Mahjoub, 2001 FCT 1095, at paragraphs 57, 58, 68 and 70 (Nadon Decision).
[24] After the original security certificate regime was held to infringe Charter rights in 2007 (see Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9, [Charkaoui I]), a new statutory system was implemented which the Supreme Court of Canada subsequently upheld [Canada (Minister of Citizenship and Immigration) v Harkat, [2014] 2 SCR 33].
[25] The Applicant began filing for conditions of release reviews under this new system in 2008.
[26] The new legislation also provides for security certificates that may be challenged in this Court on the basis of reasonableness. Such a certificate was issued against the Applicant. After very lengthy proceedings spanning several years, the late Justice Blanchard held the Applicant’s security certificate was reasonable in October, 2013 (see Mahjoub (Re), 2013 FC 1092 (Reasonableness Decision). The Applicant has appealed that decision to the Federal Court of Appeal, which appeal has not yet been heard.
[27] Justice Blanchard found that there were reasonable grounds to believe that the Applicant was a member of the Al Jihad and its splinter or sub-group, the Vanguards of Conquest, and that the Applicant posed a danger to the security of Canada given his contacts with many known or suspected terrorists in Canada and abroad. Justice Blanchard found that Al Jihad and the Vanguards of Conquest are important terrorist groups that were active in Egypt and had direct links and relationships with Osama Bin Laden and Al Qaeda.
[28] Thereafter, on December 17, 2013, after hearing an application by the Applicant to be released from all his conditions of release of detention except for a few, the late Justice Blanchard concluded:
I am satisfied that Mr. Mahjoub poses a threat to the security of Canada as described in my Reasons for Order dated January 7, 2013.
III. Summary of this motion and disposition [4] The Applicant proposes 37 specifically numbered questions to certify comprised of 19 questions to certify plus 18 constitutional questions. Many of these numbered questions have multiple unnumbered parts and subparts. All of the questions proposed are set out in Annexes A (proposed questions to certify) and B (proposed constitutional questions) attached. The Minister opposed the certification of any questions.
[5] Importantly, there is substantial duplication and overlap between the many questions propounded under categories of questions. Because of this, and in these circumstances, I agree with the Respondents that they should be considered in many cases as related groups to avoid repetition and duplication. That said, I address specific questions where they are sufficiently discrete. In addition I will supplement general comments on groups of questions with specific comments on particular questions where warranted. The grouping of questions in these Reasons generally reflects the grouping proposed by the Ministers.
[6] Also by way of background, this case resembles others like it in this matter; while only 37 numbered questions are proposed at this time (containing numerous parts and subcomponents) it is worth recalling what the Applicant proposed 126 questions in respect of Re Mahjoub, 2013 FC 1092 [Reasonableness Decision] in which the late Justice Blanchard dealt with - and upheld - the reasonableness of the security certificate issued against the Applicant.
[7] In summary, I am unable to identify any serious question of general importance that should be certified. These Reasons also consider the constitutional issues raised by the Applicant, and conclude that none have merit; additionally, none will be certified.
IV. Test for Certification and Certification [8] Section 82.3 of the IRPA provides that an appeal of a decision made under section 82, such as the 2016 Conditions of Release Order, may be brought only if a judge certifies that a serious question of general importance is involved. It also states that no appeal may be made from an interlocutory decision:
82.3 An appeal from a decision made under any of sections 82 to 82.2 may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.
[emphasis added]
[9] The Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v Liyanagamage, (1994), 176 NR 4 at paras 4-6, set out the principles governing the certification of a question under section 82.3. These principles may be summarized as follows:
(i) The question must be one that transcends the interests of the parties to the litigation and contemplates issues of broad significance or general application.
(ii) The question must be dispositive of the appeal. The certification process is not to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of the case.
(iii) The certification process is not to be equated with the reference process established by the Federal Courts Act.
[10] In Zhang v Canada (Citizenship and Immigration), 2013 FCA 168, the Federal Court of Appeal described the threshold for certification as follows:
[7] Paragraph 74(d) of the Act contains an important “gatekeeper” provision: an appeal to this Court may only be made if, in an application for judicial review brought under the Act, a Judge of the Federal Court certifies that a serious question of general importance is raised and states the question.
[…]
[9] It is trite law that to be certified, a question must (i) be dispositive of the appeal and (ii) transcend the interests of the immediate parties to the litigation, as well as contemplate issues of broad significance or general importance. As a corollary, the question must also have been raised and dealt with by the court below and it must arise from the case, not from the Judge’s reasons (Canada (Minister of Citizenship and Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S. (3d) 910 (F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (C.A.) at paragraphs 11-12; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at paragraphs 28, 29 and 32).
[10] In Varela, this Court stated that it is a mistake to reason that because all issues on appeal may be considered once a question is certified, therefore any question that could be raised on appeal may be certified. The statutory requirement set out in paragraph 74(d) of the Act is a precondition to the right of appeal. If a question does not meet the test for certification, so that the necessary precondition is not met, the appeal must be dismissed.
[11] In addition, as Pelletier JA confirmed in Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at paras 11-12, certification may only take place where there is “a serious question of general importance which would be dispositive of an appeal.” As a corollary, that Court added that the question must have been raised and dealt with in the decision below: “if it does not arise, or if the judge decides that it need not be dealt with, it is not an appropriate question for certification.”
[12] The Supreme Court of Canada in Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 SCR 982 at paragraph 25, added that “[t]he certification of a ‘question of general importance’ is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question.”
[13] The late Justice Blanchard stated in Re Mahjoub, 2014 FC 200, where he dealt with the 126 questions the Applicant alleged arose out of his Reasonableness Decision:
[8] In Varela v. Canada (Minister of Citizenship and Immigration), [2010] 1 F.C.R. 129 at paragraph 28, the Federal Court of Appeal stated that section 74 of the IRPA concerns the certification “of ‘a’ serious question of general importance, not of ‘one or more’ serious questions of general importance.” The Court acknowledged that a specific case could raise more than one question of general importance; the Court held that “[…] this would be the exception rather than the rule.” Similar wording is used in section 79 of the IRPA. It is clear that the Federal Court of Appeal did not contemplate the certification of 126 questions. Indeed, at paragraph 43 of its decision, the Court held that “[i]t is a mistake to reason that because all issues on appeal may be considered once a question is certified, therefore any question that could be raised on appeal may be certified.”
[14] Justice Pelletier, writing for the Federal Court of Appeal in Varela v Canada (Minister of Citizenship and Immigration), 2009 FCA 145 [Varela] stated:
[29] Additionally, a serious question of general importance arises from the issues in the case and not from the judge's reasons. The judge, who has heard the case and has had the benefit of the best arguments of counsel on behalf of both parties, should be in a position to identify whether such a question arises on the facts of the case, without circulating draft reasons to counsel. Such a practice lends itself, as it did in this case, to a “laundry list” of questions, which may or may not meet the statutory test. In this case, none of them did.
[emphasis added]
[15] With these general principles in mind, I turn to the Applicant’s proposed questions to certify and constitutional questions. He has numbered his questions consecutively from 1(a) to 8(v)(4); the questions for proposed certification run from 1(a) to 7(e) and the proposed constitutional questions run from 8(a) to 8(v)(4). As indicated, I will deal with the questions either alone or in groups. The references to paragraph numbers after the questions are generally to the paragraphs in my 2016 Conditions of Release Order.
V. Proposed question to certify pursuant to section 82.3 of IRPA Question 1: What is the threat to the security of Canada to be proven under section 82(5)(b) of the IRPA? (a) Can a danger or threat under subsection 82(5)(b) of the IRPA be found or conditions imposed when the threat to national security has been found inexistent by a CSIS report, updating its previous reports relied upon by the previous rulings of the Federal Court in previous detention reviews? (see Re Mahjoub, 2016 FC 808, paras 65 & 78) [16] This question relates to the evidence filed at the proceeding and in particular the CSIS report mentioned in the question itself. As such it is entirely a fact specific question. It neither transcends the interests of the parties to the litigation, nor contemplates issues either of broad significance or general application. Therefore, this proposed question fails to meet the requirements for certification.
Questions 1(b) and 8iv(b): 1(b) Is the definition of threat to the security of Canada under the CSIS Act different than a danger to be neutralized under subsection 82(5) of the IRPA? (see Re Mahjoub, 2016 FC 808, paras 65 and 78) 8iv(b) Does the law have an unconstitutional effect in that it allows the Court to use the credibility findings of a judge in a past ruling nullified and declared to assess the named person’s credibility in a later review of detention/conditions of release? (see Re Mahjoub, 2016 FC 808, paras 23, 52, 57 and Re Mahjoub, 2015 FC 1232, para 6). [17] This refers to findings made in the course of the Court's reasons on the conditions of detention. Essentially, the Applicant argues that there is no difference between a threat to the security of Canada under the Canadian Security Intelligence Service Act, RSC, 1985, c C-23 [CSIS Act] and the danger referred to in sections 81 and 82(5) of the IRPA. The Applicant further argues that since, in his submission, he is not a threat under the CSIS Act, neither of these IRPA requirements are met.
[18] In this connection, Section 1 of the CSIS Act defines “threat to the security of Canada” as follows:
threats to the security of Canada means
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
[19] Also in this connection, sections 81 and 82(5) of the IRPA read as follows:
Ministers’ warrant
81 The Minister and the Minister of Citizenship and Immigration may issue a warrant for the arrest and detention of a person who is named in a certificate if they have reasonable grounds to believe that the person is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
Order
82(5) On review, the judge
(a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.
[20] These questions do not satisfy the test for certification for a number of reasons. First, they would not be dispositive of an appeal because they are based on incorrect premises. The Applicant incorrectly surmises that the 2016 CSIS Summary concluded that the Applicant was not a danger for the purposes of the IRPA, which it did not. In addition, the CSIS Summary relates to the Applicant’s recent activities; it did not take into account his past activities, notably those which led the late Justice Blanchard to conclude that the Minister’s certificate was reasonable. Further, these questions do not consider that the Applicant is currently living under relaxed but important restrictions which cannot help but affect his threat level and dangerousness, notwithstanding his counsel’s assertions otherwise. And, while a CSIS threat assessment may ground a finding of danger under the IRPA, the absence of a current threat assessment under the CSIS Act does not preclude the Court from finding danger under the IRPA. For example, a person may be found to be a danger to the safety of another under the IRPA even though he or she does not satisfy the definition of threat to the security of Canada. Moreover, these questions do not satisfy the test for certification because they involve findings of fact and findings of mixed fact and law that neither transcend the interests of the parties to the litigation, nor contemplate issues of broad significance or general application.
Questions 1(c), 6, 8iii(a), 8iv(c): 1(c) In addition to the no threat report of CSIS, can the ruling on the reasonableness of the certificate (and evidence in support) that is, moreover, based essentially on mere past contacts and inferences of past membership in terrorist organization based on such contacts, dating back to 20 years ago, with a conclusion of no involvement in any terrorist activity be proof of a danger or threat to neutralize under subsection 82(5)(b) of the IRPA or can it justify conditions? Is this an unusual and cruel treatment under section 12 of the Charter? 6) Are the factors applied by Justice Noel [sic, throughout] and adopted by the Court, rather than the factors set out by the SCC in Charkaoui I, appropriate in a Division 9 IRPA detention review? 8iii(a) Is the law imprecise and overbroad and does it contravene the Charter as it permits arbitrary loss of liberty and arbitrary detention in spite of an updated “no threat” report from CSIS (released on January 14, 2016), by allowing, in its application or interpretation or effect, for a ruling that finds the security certificate reasonable to be found to be proof of a danger or threat under subsection 82(5)(b) of the IRPA and to impose conditions of release on the named person in violation of sections 7, 8, 12 and/or 15 of the Charter? 8iv(c) Is the law imprecise and overbroad and/or does it contravene the Charter in its application, interpretation or effect in permit[ting] the reviewing judge to apply factors other than those set out by the Supreme Court of Canada in Charkaoui v Canada, 2007 SCC 9 and to ignore other relevant factors such as the named person’s status as a convention refugee and the merits of a pending appeal in light of questions raised and filed as evidence in the record to relax conditions or release the named person pending appeal? [21] Question 1(c) is not a proper question for certification because, once again, it is fact specific to the case at bar in terms of its reference to the CSIS report or summary already dealt with above. Furthermore, its reference to cruel and unusual punishment under s. 12 of the Charter was not dealt with either orally or in writing; it is simply a throw-away assertion made by counsel and will not be considered further in the absence of a proper argument. In addition, the question relies on the false premise that the factors mentioned in it, namely, past contacts and inferred membership, were the only justifications for the imposition of conditions which, with respect, is belied by the most cursory reading of the 2016 Conditions of Release Order itself, which considered among other things the Applicant's evidence adduced during testimony, the passage of time and the elements of trust and credibility.
[22] Questions 6 and 8iv(c) are based on a misunderstanding of the Supreme Court of Canada's decision in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui I]. Contrary to the Applicant's assertion, Charkaoui I did not set out an exhaustive or finite list of factors to be considered on detention or conditions of release reviews under these provisions of the IRPA. Instead, the Supreme Court of Canada, at paragraph 108 of its decision, explicitly stated the opposite, namely that the considerations listed were “not exhaustive” and only “addressed the more obvious considerations”. The Supreme Court of Canada's decision in Charkaoui I allows Designated Judges to consider additional factors; the Applicant's argument to the contrary is without merit.
[23] Question 8iv(c) suffers from the fact that it does not arise from the judgment, and is again based on the false premise that the Applicant's status as a convention refugee was ignored; this premise cannot stand in light of paragraphs 106 and 107 of the 2016 Conditions of Release Order.
[24] Question 8iii(a) is another fact specific question, based on the Applicant's mischaracterization of the case against him, i.e., as exclusively related to the CSIS summary regarding his current activities. In my view, this question neither transcends the interests of the parties to the litigation, nor contemplates issues either of broad significance or general application. Not being dispositive, and having no general relevance, it is not a proper question for certification.
[25] None of these questions will be certified.
Questions 1(d), 2(a), 2(b), 8iii(b), and 8iii(c): 1(d) Can a danger or threat under subsection 82(5)(b) of the IRPA be found or condition imposed on the basis of Federal Court reasonableness or detention review rulings rendered void by the ruling of Charkaoui v Canada, [2007] SCJ No 9 and C3, including previous rulings on credibility related to testimonial evidence and admissions? 2(a) Can the credibility findings of a judge in a ruling nullified be used by another judge to assess credibility? 2(b) Can a judge conducting a Division 9 IRPA detention review rely upon findings and rulings under the previous regime declared unconstitutional? 8iii(b) Is the law imprecise and overbroad and contravenes the Charter as it permits, in its application or interpretation or effect, a finding of danger under subsection 82(5)b) of the IRPA and the imposition of conditions on the basis of a Federal Court reasonableness decision or detention review rulings rendered void by the Supreme Court of Canada in Charkaoui v Canada, 2007 SCC 9 and the legislation C-3? (see Re Mahjoub, 2016 FC 808, paras 23, 57, 93, 84, 87, 93, 99,100). 8iii(c) Does the law contravene the Charter, in its application, interpretation or effect, in that it permits arbitrary loss of liberty and arbitrary detention by allowing for the reviewing Court to rely on past findings and rulings including credibility findings made under the previous regime nullified and declared unconstitutional? (see Re Mahjoub, 2016 FC 808, paras 23, 52, 57, 72 and Re Mahjoub, 2015 FC 1232, paras 6-9, 80-81) [26] These questions are not proper ones to certify for several reasons. First, they start from the flawed premise that condition of release reviews should be conducted afresh from the ground up or, as counsel argues, on a de novo basis. In my respectful view, conditions of release reviews are not de novo reviews nor do they start with a blank slate. The Federal Court of Appeal determined that under the detention review scheme, an Applicant is unable to distance him or herself from previous determinations made in relation to his or her detention. In my view the same holds true for condition of release reviews. As Rothstein JA stated in the Federal Court of Appeal’s decision in Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4 [Thanabalasingham]:
THE CERTIFIED QUESTION
[5] There are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review.
Nature of the Hearing
[6] I think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, “all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.” Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.
[7] On the other hand, I also cannot accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that:
[...] the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).
[8] Nothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews “the reasons for the continued detention” [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted.
The Treatment of Prior Decisions
[9] The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.
[10] Detention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.
[11] Credibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.
[12] The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.
[13] However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.
[27] There is no support in the jurisprudence for a de novo approach in reviews of conditions of release. Such an approach is contrary to the approach adopted by the Federal Court of Appeal for analogous detention reviews, and to the Supreme Court of Canada's teachings in Charkaoui I, which placed “reasons for the detention” at the top of the list of relevant considerations.
[28] These questions advance the proposition that the Applicant may have some sort of immunity or privilege against being cross-examined on statements he made involuntarily under oath in previous proceedings. That however starts the debate on another false premise because the Applicant could not point to any evidence that his testimony before Justice Nadon was involuntary or that he was compelled to testify. In any event the 2016 Conditions of Release Order is not based solely on the evidence before Justice Nadon, nor does it rely exclusively on prior findings by other judges as is evident, again, from a most cursory review.
[29] Finally, because they are fact specific and not dispositive, these proposed questions may not be certified as a question of general importance; they do not transcend the interests of the parties.
Question 1(e): 1(e) Is it appropriate for a judge conducting a detention review under Division 9 of the IRPA to proceed on the basis that there is a reduced danger only because of the conditions, without evidence to that effect? Is that impermissible speculation? Is that impermissible as illogical? (see Re Mahjoub, 2016 FC 808, paras 76, 77, 79, 95 and 102) [30] This is not a proper question for certification; on its face it is based on the evidence in this case and, more particularly, on an allegation concerning lack of evidence. As such it is fact-specific and neither transcends the interests of the parties, nor contemplates issues of broad significance or general application.
Questions 3(a), 3(b), 8iii(d): 3(a) Is it contrary to ss. 7 and/or 13 of the Charter to allow cross-examination on affidavit on evidence given in an unconstitutional proceeding to impeach credibility in a later detention review? 3(b) Was the reasoning used to allow such cross-examination a violation of the right to silence or use immunity under section 7 of the Charter and the Canada Evidence Act because this is an IRPA proceeding contrary to binding authority in Bagri, Charkaoui I, Chakaoui II and Harkat? 8iii(d) Is the law, in its application, interpretation or effect, unfair and contravenes ss. 7 and / or 13 of the Charter including the right to silence or immunity under section 7 of the Charter and the Canada Evidence Act and is contrary to the binding authority in Re Application re s. 83.28 of the Criminal Code; ("Bagri"), [2004], S.C.J. No. 40, Charkaoui v Canada, 2007 SCC 9, Charkaoui v Canada, 2008 SCC 38 and Canada v Harkat 2014 SCC 37 in that it permits arbitrary loss of liberty and arbitrary detention by allowing for the reviewing Court to cross- examine the named person on evidence given in an unconstitutional proceeding to impeach credibility in a later review of conditions? [31] These questions are overlapping and were revised by counsel before the hearing. In my respectful view, they should not be certified because they have already been asked and answered.
[32] To begin with, cross-examination is “the ultimate means of demonstrating truth and of testing veracity”. The Supreme Court of Canada has instructed that the right of cross-examination must therefore be protected and broadly construed: R v Lyttle, 2004 SCC 5 at paras 42-44, where the Court stated:
42 In R. v. Osolin, [1993] 4 S.C.R. 595, Cory J. reviewed the relevant authorities and, at p. 663, explained why cross-examination plays such an important role in the adversarial process, particularly, though of course not exclusively, in the context of a criminal trial:
There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. For example, it can demonstrate a witness’s weakness of sight or hearing. It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence. See R. v. Anderson (1938), 70 C.C.C. 275 (Man. C.A.); R. v. Rewniak (1949), 93 C.C.C. 142 (Man. C.A.); Abel v. The Queen (1955), 115 C.C.C. 119 (Que. Q.B.); R. v. Lindlau (1978), 40 C.C.C. (2d) 47 (Ont. C.A.).
43 Commensurate with its importance, the right to cross-examine is now recognized as being protected by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. See Osolin, supra, at p. 665.
44 The right of cross-examination must therefore be jealously protected and broadly construed.
[33] These questions derive from the fact that this Applicant in this case was cross-examined on evidence he gave many years ago before Justice Nadon. The fundamental flaw in the Applicant's argument, as already noted, is that the Applicant was not compelled to give that evidence. He was assisted by counsel in preparing the affidavit he chose to file at that time, and further, counsel also represented him at the hearing during which he was cross-examined. His evidence was given voluntarily; nothing suggests it was compelled. The case law relied on by the Applicant, including In the matter of an application under section 83.28 of the Criminal Code, 2004 SCC 42, is not helpful, because it deals with situations where evidence was compelled and not, as here, where the evidence was given evidence was voluntarily. He may have been under an incorrect impression in this regard; however he had counsel and there is no merit to his suggestion that he was compelled.
[34] The same attack now mounted has been mounted unsuccessfully on many occasions, as outlined in the 2016 Conditions of Release Order (see paras 83 and following).
[35] In my view, these questions were asked and answered by Justice Dawson, as she then was, in Re Jaballah, 2010 FC 224 [Jaballah]. In that case, Justice Dawson considered and rejected virtually all of the arguments the Applicant now seeks to litigate regarding the availability of immunity or privilege as protection from cross-examination on testimony given voluntarily at a previous hearing. In Jaballah, Justice Dawson found that the applicant before her, in essentially the same situation as the Applicant before me, was not compellable. Her Ladyship rejected a claim to immunity and privilege under IRPA after detailed analysis with reference to the criminal law on this point:
[92] I believe the values that informed the Court's analysis in Henry should inform considerations of the scope of the protection afforded to Mr. Jaballah under section 7 of the Charter. The liberty and security interests that are engaged in this proceeding are significant, however, I do not see that they justify greater protection than would be afforded to an accused in a criminal proceeding.
[emphasis added]
[36] With respect, I agree. To put Justice Dawson’s finding regarding protection afforded criminal accused into perspective, I observe that the Supreme Court of Canada in R v Henry, 2005 SCC 76 [Henry] reviewed and reformulated the law and principles in terms of the protection against self-criminalization and section 13 of the Charter. It concluded:
47 Accused persons who testify at their first trial and then volunteer inconsistent testimony at the retrial on the same charge are in no need of protection “from being indirectly compelled to incriminate themselves” in any relevant sense of the word, and s. 13 protection should not be available to them.
[…]
48 Insofar as Kuldip permitted cross-examination of the accused on the inconsistent testimony he volunteered at his first trial, Kuldip should, of course, be affirmed. However, insofar as the Court felt compelled by Mannion to narrow the purpose of the cross-examination to the impeachment of credibility, and to deny the probative effect of the answers on the issue of guilt or innocence, it seems to me our decision today not to follow Mannion renders such restrictions no longer operative. If the contradiction reasonably gives rise to an inference of guilt, s. 13 of the Charter does not preclude the trier of fact from drawing the common sense inference.
50 I would go further. Even though s. 13 talks of precluding the use of prior evidence “to incriminate that wit