Jaballah v. Canada (Minister of Citizenship and Immigration)

Jaballah v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2003-05-23
Neutral citation
2003 FCT 640
File numbers
DES-4-01
Notes
Reported Decision
Decision Content
Federal Court Reports Jaballah (Re) (T.D.) [2003] 4 F.C. 345
Date: 20030523
Docket: DES-4-01
Neutral citation: 2003 FCT 640
BETWEEN:
IN THE MATTER OF a certificate pursuant to
Section 40.1 of the Immigration Act, R.S.C. 1985,
c. I-2, now deemed to be under subsection 77(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27
AND IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada;
AND IN THE MATTER OF Mahmoud JABALLAH
REASONS FOR ORDERS AND DETERMINATIONS
MacKAY J.
INTRODUCTION
[1] These Reasons concern a number of determinations by the Court arising from proceedings that began on August 15, 2001, by reference to the Court of a certificate, filed by the Solicitor General and the Minister of Citizenship and Immigration pursuant to then s. 40.1 of the Immigration Act, that in their opinion, the respondent, Mr. Jaballah, a foreign national who came to Canada in 1996 and applied for refugee status, is inadmissible to Canada on national security grounds.
[2] The proceedings were suspended in early July 2002 at the request of Mr. Jaballah when he applied to the Minister to be found to be a person in need of protection, pursuant to s. 112 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended, ("IRPA") which came into force June 28, 2002. Since then the respondent has remained, as he has been since mid-August 2001, in detention in solitary confinement. No final decision on his application to the Minister has been communicated to the Court, as has been expected in accord with IRPA and the IRPA Regulations. On April 11, 2003 the Court heard a motion on behalf of the respondent, based on the principle of abuse of process and claiming Charter interests, the purpose of which would be that the Court should now resume its suspended proceedings, previously suspended, and quash the certificate of the Minister, and release Mr. Jaballah from detention.
[3] In summary, the determinations now made, filed in two separate orders and determinations, now allow the respondent's motion in part, insofar as an assessment of the risk to Mr. Jaballah if he were now returned to Egypt, the "PRRA" by an officer acting on behalf of the Minister, which was provided to the respondent in August 2002, and now filed by direction of the Court in April 2003, is deemed to be the assessment of the risk by the Minister purusant to paragraph 172(2)(a) of the IRPA Regulations, made in accord with s. 97 of the Act.
[4] Further, the Court determines that, as there is as yet no satisfactory explanation for the delay in advising it of a decision by the Minister in relation to the application for protection, without any firm indication of a date for decision, continuing delay constitutes an abuse of the Court's process with the respondent continuing in detention, without right of review. In these circumstances, the appropriate relief in the circumstances of this case is to resume the proceedings that deal with the issue raised by reference of the Minister's certificate to the Court, leaving to the Minister a decision on the application for protection as the Act directs.
[5] In Part II of these Reasons, the Court now determines, pursuant to s-s. 80(1) of the Act that the certificate dated August 13, 2001 by the applicant Ministers, on the basis of the evidence and information available to the Court, is reasonable.
[6] Since there is no decision communicated on the application for protection, no determination is made whether such a decision is lawful, as provided for by s-s. 80(1). Presumably when made, the decision will be subject to judicial review.
[7] These Reasons are long. They include reference to several stages in the proceedings. The following headings and paragraph numbers where each section begins, may assist in providing an overview of the context in which my determinations are made.
Part I Background
1. The legislative regime, the context for determinations [8]
2. The Court's determination to resume proceedings [17]
3. Immigration circumstances of the respondent [37]
Part II Proceedings concerning the Ministers' Certificate
4. Preliminary matters [42]
5. Efforts to identify "new" information [50]
6. Withdrawal of counsel for the respondent [55]
7. Ensuring opportunity for the respondent to be heard [57]
8. Reviewing information and evidence, 1999 and 2001 [61]
9. Delay in determining reasonableness of certificate [63]
10. The process condemned by counsel for Mr. Jaballah [65]
11. The reasonableness of the certificate of the Ministers
a) The test for assessing what information is new [70]
b) Information new to the Ministers after November 1, 1999 [81]
c) Information partly new to the Ministers in 2001 [83]
d) Conclusion concerning new information before this Court [86]
e) Finding the certificate is reasonable [90]
Part III Conclusions, Orders, Costs [98]
Part I BACKGROUND
1. THE LEGISLATIVE REGIME, THE CONTEXT FOR DETERMINATIONS
[8] When this proceeding began, in August 2001, it was governed by the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "1985 Act"), and in particular, s. 40.1 of that Act, under which the certified opinion issued and the matter was referred to this Court. However, before this decision was rendered, the 1985 Act was repealed and replaced by IRPA, which came into force on June 28, 2002. This proceeding, begun under the 1985 Act, has continued under IRPA, which provides in part, (consistent with the general principle under 44(c)) of the Interpretation Act, R.S.C. 1985, c. I-21, as amended), that:
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.
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise.
Relevant provisions of IRPA are reproduced in Annex A, with brief references to comparable provisions of the 1985 Act. Statutory references in these Reasons are primarily to IRPA now in force, with additional references to comparable provisions in the 1985 Act where that seems appropriate.
[9] This proceeding began with the referral to the Court of a certificate by the applicants, the Minister of Citizenship and Immigration and the Solicitor General of Canada, pursuant to paragraph 40.1(3)(a) of the 1985 Act (now replaced by s-s. 77(1) of the IRPA), for the Court to assess the reasonableness of the certificate, pursuant to paragraph 40.1(4) of the 1985 Act (now replaced by s-ss. 80(1) and (2) of the IRPA). That certificate states the opinion of the applicants, based upon security intelligence reports, that Mr. Jaballah, who is not a Canadian citizen but who, after arriving in Canada in 1996, had claimed Convention refugee status under the 1985 Act, is inadmissible to Canada as a person described in sub-paragraphs 19(1)(e)(ii), 19(1)(e)(iv)(B), 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of that Act.
[10] Comparable provisions of the IRPA, to those referred to in the Ministers' certificate, are paragraphs 34(1)(b), 34(1)(c) and 34(1)(f). Thus in the terms of the IRPA, the certified opinion of the Ministers is that Mr. Jaballah is inadmissible on security grounds for:
- engaging in or instigating the subversion by force of any government; in this case the government of Egypt (paragraph 34(1)(b));
- engaging in terrorism (paragraph 34(1)(c));
- being a member of an organization, pursuant to paragraph 34(1)(f), that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs 34(1)(b) or (c).
[11] My determinations are made pursuant to s-s. 80(1) of IRPA, after consideration of the evidence and information filed in the Court and adduced on behalf of the applicants, and in the absence of any evidence adduced by or on behalf of Mr. Jaballah, except that tendered on his behalf from earlier proceedings in 1999, when he had produced evidence relating to a similar certificate that was referred to the Court in accordance with s-s. 40.1(3) of the 1985 Act. After hearings, that earlier certificate was found to be unreasonable and it was quashed by Order of Mr. Justice Cullen. (See Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (T.D.) (QL), hereinafter "Jaballah No. 1").
[12] These proceedings are unusual in that this is the second certificate with respect to Mr. Jaballah, issued for the same general purposes, setting out the same opinion by the applicant Ministers under then s. 40.1 of the 1985 Act. The first certificate dated March 31, 1999, as noted, was found to be unreasonable, and was quashed by Mr. Justice Cullen's Order, dated in early November 1999. The second certificate, dated August 13, 2001, is now before the Court. It is said by counsel for the applicant Ministers to be based substantially on new information, a perspective not shared by the respondent, Mr. Jaballah.
[13] The proceedings are unusual also in that after hearings commenced, and were to continue on March 11, 2002, to hear evidence and argument on behalf of Mr. Jaballah to respond to information claimed by the Ministers to be new, counsel for Mr. Jaballah announced his withdrawal from the s. 40.1 proceedings. Doing so, he said, was based on advice of counsel that he had consulted and on the ground that his oath as a barrister would not permit him to continue in these proceedings. In his view, the proceedings had been manipulated by the Canadian Security Intelligence Service ("CSIS") and had been used as an investigatory, prosecutorial service. The Court's traditional role as an adjudicator had been tarnished and these proceedings were a "sham". That perception, by experienced counsel, warrants addressing, after these Reasons first provide an overview of the process followed.
[14] A further step in these proceedings was initiated on July 1, 2002 when counsel who had withdrawn from the s. 40.1 proceedings, requested on behalf of Mr. Jaballah that these proceedings be suspended pursuant to s. 79 of IRPA pending a decision of the Minister of Citizenship and Immigration on an application for protection, then proposed to be made by the respondent under s. 112 of IRPA, an application possible under that Act at that stage in the proceeding. With decision under reserve on the Ministers' motion that the Court find their certificate reasonable, the proceedings in regard to the certificate were then suspended pursuant to s-s. 79(1) of IRPA. While notice from the Minister of his decision on that application has not yet been received by the Court, it is now determined that the delay in providing that notice, while Mr. Jaballah remains in detention, in solitary confinement, and is not sufficiently explained, and without a reasonable forecast of its termination, in the circumstances of this case constitutes an abuse of process.
[15] That warrants resumption by the Court of its primary task, and in accord with s-ss. 79(2) and 80(1) of IRPA, I now resume consideration of whether the certificate of the Ministers is reasonable.
[16] After describing the basis of the Court's determination to resume the proceedings, these Reasons then provide a brief description of the immigration circumstances of the respondent. These Reasons then describe in summary the proceedings here followed in relation to the Ministers' certificate. The principal issue is whether there is "new information" before this Court, which was not before Mr. Justice Cullen in 1999, that supports a conclusion that the current certificate of the Ministers' opinion concerning Mr. Jaballah is reasonable.
2. THE COURT'S DETERMINATION TO RESUME THE PROCEEDINGS
[17] On April 11, 2003 a motion on behalf of Mr. Jaballah was considered seeking, inter alia, orders that the decision of a Pre-Removal Risk Assessment ("PRRA") officer, dated August 15, 2002 and then forwarded to him, be filed and deemed by the Court to be the decision of the Minister concerning the risk to Mr. Jaballah if he were removed from Canada. The motion sought a further order that the certificate of the Ministers now be quashed because of abuse arising from delay in deciding Mr. Jaballah's application for protection made in July 2002, and that Mr. Jaballah be released from detention.
[18] Delay, while Mr. Jaballah continues in detention in solitary confinement, as he has been since August 14, 2001, in the circumstances of this case, in my opinion, constitutes abuse of process.
[19] The circumstances of this case at two stages have been described in previous decisions (see: Re Jaballah, 2001 FCT 1287, [2001] F.C.J. No. 1748 (QL) (T.D.) dated November 23, 2001; and also Re Jaballah, 2002 F.C.T. 1046, [2002] F.C.J. 1385 (QL), dated October 8, 2002). The former deals with a number of preliminary issues raised by Mr. Jaballah including the application of the principles of abuse of process or res judicata in this reference which I declined to apply at that stage of proceedings, having heard no evidence or argument that would warrant application of those principles. That decision also describes the background up to the fall of 2001, including reference to the earlier certificate issued concerning Mr. Jaballah, which was found to be unreasonable and quashed in November 1999.
[20] The second of the earlier decisions dealt with submissions of the parties about the provisions of IRPA and the IRPA Regulations relating to the process of the Court following Mr. Jaballah's application for protection and his receipt of the PRRA assessment, dated August 15, 2001, that his application should be granted. This assessment was based on finding substantial grounds for belief that, if removed from Canada to his native Egypt, Mr. Jaballah would face a risk of torture, and a risk to his life or of cruel and unusual treatment or punishment, under paragraphs 97(1)(a) and (b) of IRPA. The assessment concluded that the application should be allowed.
[21] At that stage, counsel for Mr. Jaballah urged that the Court should treat the assessment received by Mr. Jaballah, not by the Court, as the decision of the Minister in relation to the application for protection and that the certificate issued by the applicant Ministers in August 2001 should be quashed. There was no report to the Court of the Minister's decision on the application for protection. I found that under IRPA and the IRPA Regulations, the Court's resumption of proceedings was directed after the decision of the Minister was reported to the Court, and that the decision of the Minister under paragraph 113(d)(ii) of IRPA (and s-s. 172(2) of the IRPA Regulations) is to be based on factors set out in s. 97, and on an assessment whether the application should be refused "because of the nature and severity of the acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada".
[22] To date there has been no report on the second aspect of the Minister's decision and no decision has been made. The Court made clear on at least three occasions that it was concerned with the delay, which in September 2002 was forecast to be at least three months before a decision would be rendered. In November and December 2002, the Court was advised by letters from counsel for the Minister of initiatives taken by representatives of the Government of Canada to seek information and assurances from representatives of the Government of Egypt. When there was no further information by mid March 2003, the Court initiated a telephone conference, arranged for a hearing on the matter, and welcomed a motion by counsel for Mr. Jaballah. The Court then reserved decision but now determines that the motion is allowed in part, insofar as it seeks an order that the PRRA decision, dated August 15, 2002, is filed, on behalf of the Minister as directed by the Court on April 11, 2003, and is deemed to be the report of the Minister in relation to the risk facing Mr. Jaballah if he were returned to Egypt.
[23] Moreover, the Court determines that the delay in rendering the decision on the application for protection constitutes an abuse of process. The explanation provided of discussions within government about the process of implementing the new procedure under IRPA for applying for protection, of time consuming discussions with representations of the Government of Egypt, have thus far led to no report to the Court.
[24] I note that at the hearing on April 11, 2003, where the principal concern was with delay, counsel for Mr. Jaballah tabled with the Court an affidavit exhibiting a copy of a letter from an officer of the Minister's department which was served on Mr. Jaballah on April 8, 2003 and a copy was later served on his counsel. The letter appends a memorandum and "An Assessment pursuant to R. 172(2)(b) of the Immigration and Refugee Protection Act," dated April 3, 2003, by a senior analyst in the Case Review Division, Case Management Branch of the Minister's department. That assessment reviews the circumstances of Mr. Jaballah's case, finds it "apparent" that he is "a member of the group known as 'Al Jihad'", now an organization listed under Part II.I of the Criminal Code as an entity believed to be engaged in terrorist activity and concludes " . . . it is my assessment that Mahmoud Es-Sauy [apparently the name by which the writer refers to Mr. Jaballah] is a danger to the security of Canada".
[25] That conclusion is not a surprise, in view of the Minister's certificate issued in August 2001. It would have been surprising if an officer acting for the Minister would now find that the respondent is not a danger to Canadian security. From correspondence, it appears Mr. Jaballah has been given an extension of time, to June 10, to respond in writing to the assessment that he is "a danger to the security of Canada".
[26] With respect, that assessment does not seem at first glance to meet requirements of paragraph 172(2)(b) of the IRPA Regulations which speaks of a written assessment to be provided to the applicant on the basis of factors in subparagraph 113(d)(ii) of the Act. That subparagraph in turn speaks of whether the application for protection should be refused "because of the danger the applicant constitutes to the security of Canada". That balancing step, weighing the risk to Canadian security which the applicant constitutes, and implicitly the risk to him if he be returned, is yet to be undertaken.
[27] As I read the Act and the IRPA Regulations, any decision that weighs the risk to Mr. Jaballah if he is returned and the danger that he constitutes to the security of Canada, will be required to be communicated to Mr. Jaballah (Regulations paragraph 172(2)(b)) with an opportunity to respond (Regulations s-s. 172(1)) before the decision on behalf of the Minister is made. That decision would then be subject to review of its lawfulness (IRPA s-s. 79(2)). That assessment, it may be argued, will be required to be made in conformance with s. 7 of the Charter, in light of the comments of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 S.C.C. 1, [2002] 1 S.C.R. 3, 208 D.L.R. (4th) 1. There, in discussing the Minister's decision that a refugee be deported, the Court said, in part:
76 The Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter. . . .
. . .
77 . . . In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter. It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.
78 We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 "only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like" . . . [citations omitted]. Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.
[28] Unless the Minister's decision on the application for protection is favourable to Mr. Jaballah's claim, the portents are for continuing argument about, and resolution of, the lawfulness of the decision of the Minister, before this Court would otherwise resume proceedings under s-s. 79(2) of IRPA. At this stage, there simply is no reasonable prediction of when that process would be completed and when there would be a resumption of consideration of the reasonableness of the Ministers' certified opinion that Mr. Jaballah is inadmissible to Canada. Meanwhile, the respondent continues to be held in detention, thus far in solitary confinement, at the direction of the Ministers. Under IRPA, the opportunity of a person in Mr. Jaballah's position to have a review of his detention arises only a fixed period after a determination that the Ministers' certificate is reasonable, and the person concerned is not removed from Canada and is still held in detention.
[29] In my opinion, delay in determining Mr. Jaballah's application for protection while he remains in detention, with no reasonable forecast of when that decision will be made, constitutes abuse of process in this case. The delay has no significance for the Court's primary function here, that is, to assess the reasonableness of the certificate referred to it for consideration. Whether the Minister's decision on the application for protection is made tomorrow or some months from now, this Court's responsibility to assess the certificate's reasonableness will remain the same.
[30] In the circumstances, while the Court is not prepared to accept the remedy proposed by counsel for Mr. Jaballah, that is, an order quashing the Ministers' certificate, the abuse of process does warrant an order that the proceedings concerning the certificate now be resumed without waiting for the Minister's decision on the application for protection. In my opinion, though I have not heard argument on the matter, Mr. Jaballah is entitled under IRPA to an answer in response to the application for protection and the Minister has a duty to provide a decision in accord with the Act. Further, whenever that decision is rendered, in my opinion it will be subject to an application for leave and for judicial review.
[31] I am not prepared to quash the certificate before the Court, not merely because the delay, which I find constitutes abuse, concerns a side issue principally relating to the possible ultimate removal of Mr. Jaballah from Canada, a matter not before the Court, but also because much time, effort and energy has been expended by the applicant Ministers and their departments, by counsel and by the Court. The abuse found does not warrant quashing the certificate, without a decision on the reasonableness of the Ministers' certificate.
[32] For Mr. Jaballah, a preliminary motion that the certificate be quashed on the principle of abuse of process (discussed in Re Jaballah, 2001 F.C.T. 1287, supra) concerned another perceived abuse, not delay in a decision on an application for protection, rather based on the perception that in these proceedings there is no evidence that was not before Mr. Justice Cullen in 1999 in Jaballah No. 1. I did not accept the preliminary objection when heard, and I do not consider the basis of the perceived abuse is established. It is clear from these Reasons that having carefully reviewed the evidence before Mr. Justice Cullen and that before this Court, there is new information and evidence available to this Court.
[33] I am not persuaded that there is any abuse of process or undue prejudice to Mr. Jaballah, beyond that contemplated under IRPA, in the proceedings up to the time of Mr. Jaballah's application for protection in July 2002.
[34] There is another factor of significance for the decision to now resume consideration of the reasonableness of the Ministers' certificate in light of the absence of any reasonable forecast of when the Court might otherwise deal with the certificate. Any perception that this Court is implicated in delaying its process concerning Mr. Jaballah must end, despite delay by the Minister's department on an issue not yet before the Court, and not relevant to determinations concerning the certificate before the Court.
[35] While I find there is abuse of process in the delay in providing a decision on the application for protection by Mr. Jaballah, the Court does not approve the respondent's motion that in view of this abuse the certificate of the Ministers should now be quashed. Rather, the Court does resume its proceedings in regard to the certificate and now proceeds to deal with that matter. Further, I do not accept the application for Mr. Jaballah's release from detention where he is held at the Ministers' direction. His release from continuing detention may be dealt with by a detention review under IRPA.
[36] Before setting out considerations relating to the proceedings for the assessment of the Ministers' certificate, the context for that assessment is assisted by a brief review of immigration circumstances of the respondent.
3. IMMIGRATION CIRCUMSTANCES OF THE RESPONDENT
[37] Mr. Jaballah arrived in Canada in 1996 and he, his wife and four children claimed refugee status. The family originated in Egypt where Mr. Jaballah, his wife and at least his elder children are citizens. The family, then fewer in number, left Egypt in 1991 on a religious pilgrimage and did not return because of concern about the treatment by Egyptian authorities, of Mr. Jaballah, who alleges he had faced recurring arrests, detention and torture, and of his wife who had been detained, and so mistreated on one occasion that she had a miscarriage. From 1991 the family lived for three months in Saudi Arabia, then moved to Pakistan. Mr. Jaballah lived in 1994-95 in Yemen and Azerbaijan, apart from his family who remained in Pakistan. He rejoined them in 1996 and he and his family travelled through Turkey and Germany to Canada. On their arrival here in May 1996, Mr. Jaballah, who travelled using a false Saudi Arabian passport, his wife and four children, claimed Convention refugee status. Since their arrival in Canada two other children have been born to Mr. Jaballah and his wife.
[38] On March 4, 1999, the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board decided that Mr. Jaballah and his family born abroad were not Convention refugees. That decision was then the subject of an application for leave and for judicial review.
[39] Meanwhile, on March 31, 1999 Mr. Jaballah had been arrested on the first security certificate issued against him by the applicants. That certificate was referred to this Court and, as noted, after hearings it was quashed by order of Mr. Justice Cullen in November 1999.
[40] Later, leave having been granted for judicial review of the negative CRDD decision which rejected the family's refugee application, that decision was set aside on September 28, 2000, and it was referred back for reconsideration by a differently constituted panel (see: Jaballah v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. 1577, (2000) 196 F.T.R. 175). Thereafter the rehearing of Mr. Jaballah's refugee claim by the CRDD was scheduled for August 16, 2001.
[41] Rehearing of the refugee claim so far as it concerns his wife and children, was finally completed, after long delay on April 9, 2003. As we have seen on August 15, 2001, the certificate giving rise to this proceeding was referred by the Ministers to the Court, and to me as the Judge designated pursuant to s-s. 40.1(4) of the 1985 Act (now ss. 76 and 78 of the IRPA). On August 14, 2001, the second certificate under s. 40.1 of the 1985 Act having been issued by the applicant Ministers, Mr. Jaballah was arrested, and he has since been detained in solitary confinement.
PART II
4. PROCEEDINGS REGARDING THE MINISTERS' CERTIFICATE
PRELIMINARY MATTERS
[42] Preliminary proceedings in relation to the Ministers' certificate, including preliminary motions argued at hearings on October 31 and November 1, 2001, are reviewed in earlier Reasons (see: Re Jaballah, 2001 FCT 1287, supra). In those Reasons and by accompanying orders I dealt with preliminary motions of the parties, including the striking of subpoenas duces tecum issued on behalf of the respondent to the applicant Ministers. In response to the respondent's motion to stay proceedings, counsel for the applicants acknowledged that the principles of res judicata, issue estoppel and abuse of process might be applicable in situations where a second certificate is issued under s. 40.1 of the 1985 Act, but they urged that these principles were not applicable in this case because there is new evidence before the Court, not presented in Jaballah No. 1. I dismissed the respondent's motion that the proceedings be stayed on one or more of those principles at the preliminary stage, without prejudice to the respondent's returning to argue the application of those principles after evidence had been heard in this matter.
[43] My earlier Reasons record that pursuant to paragraphs 40.1(4)(a) and (b) and s-s. (5.1) of the 1985 Act the Court had considered evidence submitted on behalf of the applicant Ministers, in camera and ex parte, with counsel for the Ministers present, but in the absence of Mr. Jaballah or counsel on his behalf. I then approved a summary statement of the information before me, to be provided to Mr. Jaballah, omitting from that statement any information that, if disclosed, in my opinion would be injurious to national security or the safety of persons. With that summary the respondent was also provided with six binders of copies of documents, the binders being identified as A1, A2, A3, A4, A5 and B. That collection of documents released to Mr. Jaballah comprises some of the documentary information before the Ministers and submitted to the Court. It excludes any relevant documents withheld on grounds of national security or of potential injury to the safety of persons.
[44] The earlier Reasons also dealt with two other matters raised by the respondent which are worth recording here. I indicated that constitutional issues raised, so far as they were similar to those raised before Mr. Justice Nadon in Canada (Minister of Citizenship and Immigration) v. Mahjoub, (2001), 199 F.T.R. 190, 13 Imm. L.R. (3d) 33, if argued herein, would be dealt with as Nadon J. had done, unless this Court could be persuaded that he was clearly wrong. That included his determination that a judge considering a certificate issued under s. 40.1 of the 1985 Act has no authority to consider arguments about the constitutionality of that statutory provision, which has been found not to infringe ss. 7, 9, or subsection 10(c) of the Canadian Charter of Rights and Freedoms or paragraph 2(e) of the Canadian Bill of Rights (see: Ahani v. Canada, [1995] 3 F.C. 669, appeal dismissed (1996), 201 N.R. 233 (F.C.A.), leave to appeal refused [1997] 2 S.C.R. p. v.). While there was no further argument of constitutional issues before me, I note for the record that they were raised.
[45] The final matter raised in preliminary motions of the respondent concerned issues of disclosure of more than the summary statement of evidence and the documents released to Mr. Jaballah. I directed that he be provided with names of one or more CSIS officers knowledgeable about the summary public statements issued in Jaballah No. 1 and in this case, and a list of all officers of CSIS, the RCMP or other public servants who have interviewed Mr. Jaballah, together with information about those interviews. Subsequently, I directed that the applicants produce an officer of CSIS, knowledgeable about the evidence in Jaballah No. 1 and in this case, to testify about the differences in the evidence and information as set out in the public summary statements issued and the documents released to Mr. Jaballah in the two cases.
[46] In mid-December 2001, a representative of CSIS, identified only as "Mike" for purposes of the hearing, was called as a witness by counsel for the Ministers. He was examined and then cross-examined, with regard to what new information, not adduced in Jaballah No. 1, was before this Court, especially in the public summary statement issued to the respondent. His evidence was given with particular attention to a document entitled "Comparison of Summaries, Jaballah No. 1 (February 5, 1999) and Jaballah No. 2 (August 14, 2001)" prepared by counsel for the Ministers. I will examine in some detail the information which Mike testified was new in this case, after first completing the description of these proceedings.
[47] It is useful to refer briefly to the summary statements released to Mr. Jaballah in Jaballah No. 1 in 1999 and in this case. Each sets forth the information made public that is the basis for the respective opinion of the Ministers. The opinion certified in 2001 is the same as that certified in 1999, i.e., that Mr. Jaballah is considered inadmissible to Canada pursuant to the classifications set out in the same paragraphs of s. 19 of the 1985 Act. Much of the public information included in the summary statement on which the current opinion is said to be based is the same as that which was before Mr. Justice Cullen. Some information now relied upon which was not available to the Ministers when the first certificate was issued, comes from Mr. Jaballah himself by his own evidence or testimony in his CRDD refugee application and hearing, or in his testimony adduced in Jaballah No.1. It is the use of that latter evidence which led counsel for the respondent to allege misuse of the Court process by CSIS and by the applicant Ministers who now argue, in part at least in reliance on Mr. Jaballah's testimony in Jaballah No. 1, that the certificate now before the Court is reasonable.
[48] I note for the record that the summary statement provided to Mr. Jaballah in this matter, and the documents released to him, were prepared and compiled before mid-August 2001, more than a month before the terrible events in New York and elsewhere in the United States on September 11, 2001, and well before the subsequent events in Afghanistan and more recently in Iraq and elsewhere in the world. While in his testimony in mid-December 2001, Mike referred to recent information received since September 11 without specifying its substance, no other information originating or reported after that September date was filed with the Court at any time, except for the exhibits introduced through Mike's testimony.
[49] Those exhibits include copies of judgment/orders of United States Federal Court indictments and convictions, and diagrams to demonstrate CSIS' perceptions of communication links between cells of the Al Jihad/Al Qaida network, particularly in or about August 1998, when the United States embassies in Nairobi and in Dar es Salaam were targets of lethal car bombs on the same day, resulting in substantial loss of life. The latter exhibits are interesting and they depict communication links between Mr. Jaballah in Toronto and certain known Al Qaida operatives or centres, and between those centres in various countries. At least in part, those exhibits are said to be based on indictments in proceedings in United States courts in regard to the 1998 embassy bombings. I note that the judgment/orders resulting from those indictments, which were introduced in these proceedings through testimony of Mike for the Ministers, do not include reference to, or support allegations specifically relating to, Mr. Jaballah. There is no reference to these perceived communication links in the summary of the Ministers' case, either the original or the supplementary summary referred to in these Reasons. The diagrams in themselves are of no weight as evidence and insofar as they are based on information available to the Ministers before November 1, 1999, they are not based on "new" information, not available or provided in Jaballah No. 1.
5. EFFORTS TO IDENTIFY "NEW" INFORMATION
[50] When the two summary statements, issued in Jaballah No. 1 and in this case, were compared by counsel for Mr. Jaballah, he urged that there is relatively little different information provided to support the same opinion of the Ministers on this second occasion. Indeed, for Mr. Jaballah it is said that there is no significant new evidence that could warrant a different determination from that reached in Jaballah No. 1.
[51] That position was urged upon the Court following the testimony and cross-examination of Mike in December 2001. Counsel for the respondent had earlier asked a series of questions in cross-examination that led to confirmation by Mike that any allegations of involvement of Mr. Jaballah, and of his perceived relationships with others, were in essence similar to those alleged by the Ministers as the basis for their certified opinion in Jaballah No. 1. In re-examination counsel for the Ministers asked a closing question which led to questions by the Court and by counsel for Mr. Jaballah in further cross-examination, as follows (transcript, December 18, 2001, at pp. 662-667):
Mr. Batt [for the Ministers]:
Q. Mike, I take it that in relation to the overall responses that you have given your position is
that there is new information and that new information casts a different light on the old information. Would that be a correct summation of what you have been saying for the last two days?
A. That would be correct, yes.
The Court: ...I am not sure what the implications of that answer are, and it may be that I should not be
asking you but should be awaiting counsel's submissions on it.
I want to be fairly clear in my own mind that the view taken relates to new information to which Mr. Jaballah might be expected to respond. I am not sure whether that arises from your response which says that it is new light on old information. That may not be what you said but, if it is, then it is troubling. What do you mean by "new light?"
The Witness: The allegations, my lord, certainly remain the same. Th