Date: 20040921
Docket: DES-3-03
Citation: 2004 FC 1291
Ottawa, Ontario, the 21st day of September 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN RE a certificate pursuant to subsection 77(1)
of the Immigration and Refugee Protection Act,
signed by the Minister of Immigration and
Solicitor General of Canada (the Ministers),
S.C. 2001, c. 27 (the I.R.P.A.);
IN RE the filing of this certificate in the
Federal Court of Canada pursuant to
subsection 77(1) and sections 78 and 80 of the I.R.P.A.;
IN RE the warrant for the arrest and
detention and the review of the reasons
justifying continued detention pursuant to
subsections 82(1) and 83(1) and (3) of the I.R.P.A.;
AND IN RE
an application for amendment and cross-examination
of two individuals by Adil Charkaoui
(Mr. Charkaoui)
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] This is an application to review the order of July 23, 2004, to amend errors or omissions mentioned in a letter of July 23, and in particular the failure to dispose of the application to cross-examine Mr. Ressam and Mr. Zubeida. To do this, Mr. Charkaoui suggested that review of the detention review be re-opened or there be a new detention review, and consequently that a date be set for these cross-examinations.
[2] Mr. Charkaoui's letter of July 23, 2004, through his counsel, read as follows:
[TRANSLATION]
This is further to the reasons rendered on this date.
We would draw your attention to three errors in the decision and two omissions which should be amended, if possible, namely:
- At page 2, paragraph 2, "to allow the Minister to dispose of a protection application";
- At page 7, dash 4, and page 18, paragraph 37:
- Mr. Khadr said in his testimony about Mr. Ressam that he had not seen him in Afghanistan: "in fact, he did not remember him";
- he further stated that he regarded persons living there, such as Mr. Charkaoui, as Canadians.
In terms of omissions, we would draw your attention to the fact that at page 15 of this judgment (paragraph 28), where it states "I would add that these interviews took place in the presence of . . .", that these new facts were never disclosed to Mr. Charkaoui before the detention review or before judgment. The same is true of the evidence filed ex parte in a hearing held after the close of pleadings on July 13 last regarding Mr. Zubeida, mentioned at page 16, paragraph 30.
We have indicated several times that if you did not exclude these statements, we wished to cross-examine these individuals.
The judgment makes no mention and does not dispose of the application to cross-examine these individuals, if the statements were not excluded by the Court. At the same time, there is a conclusion in paragraph 29 that this evidence may be part of the record.
We feel that a reference to these facts should appear in the judgment and that the Court should rule on the cross-examination application, if possible.
Thanking you in advance,
Yours truly,
Me Doyon
[3] After reading the said letter, the Court amended the second paragraph of the judgment by adding the amendment requested, inserting [TRANSLATION] "to allow the Minister to dispose of a protection application", and did so with the agreement of counsel for the Ministers.
[4] On the testimony of Mr. Khadr and the alleged errors, no amendment was made as there was simply no amendment to be made.
[5] On the application to cross-examine Mr. Ressam and Mr. Zubeida, the Court simply did not consider this as Mr. Charkaoui's motion as filed did not make any such application, and no application to amend was made at the hearing which could enable a ruling to be given on this point. However, counsel for Mr. Charkaoui referred to this possibility at the hearing without indicating whether an amendment was going to be made. Moreover, the situation is such that counsel's pleadings did not deal with such an application.
[6] Accordingly, the Court does not have any such application before it and has made no ruling in this regard. Having said that, it would not be proper to re-open the hearing on the detention or to hold a new hearing.
[7] At the same time, the Court is prepared to consider a written motion in this regard, to be dealt with in accordance with Rule 369 of the Federal Court Rules, 1998, or otherwise. If the Court accepts the application, the evidence from the cross-examinations could be part of the record regarding the reasonableness of the certificate or dealing with a forthcoming review of the detention, if applicable. A specific application will have to be made in this regard, if one of the parties sees fit to do so.
FOR THESE REASONS, THE COURT ORDERS THAT:
- The motion to correct the judgment dated July 23, 2004, and the application to cross-examine Mr. Ressam and Mr. Zubeida is dismissed without costs.
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"Simon Noël"
Judge |
Certified true translation
Suzanne M. Gauthier, C Tr, LL L
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-3-03
STYLE OF CAUSE: IN RE A CERTIFICATE PURSUANT TO SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT
AND ADIL CHARKAOUI
PLACE OF HEARING: WRITTEN MOTION CONSIDERED WITHOUT APPEARANCE BY PARTIES
REASONS BY: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: SEPTEMBER 21, 2004
WRITTEN SUBMISSIONS BY:
DANIEL ROUSSY FOR THE SOLICITOR GENERAL OF
and CANADA
LUC CADIEUX
DANIEL LATULIPPE FOR THE MINISTER OF CITIZENSHIP AND IMMIGRATION
JOHANNE DOYON FOR ADIL CHARKAOUI
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE SOLICITOR GENERAL OF
DEPUTY ATTORNEY CANADA AND THE MINISTER OF
GENERAL OF CANADA CITIZENSHIP AND IMMIGRATION
DOYON, MORIN FOR ADIL CHARKAOUI
MONTRÉAL, QUEBEC