Date: 20040309
Docket: DES-1-00
Citation: 2004 FC 355
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and THE SOLICITOR GENERAL OF CANADA
Applicant
- and -
MOHAMED ZEKI MAHJOUB
Respondent
DAWSON J.
[1] These are my reasons delivered orally from the Bench in Toronto on March 8, 2004, edited to insert citations for legislative provisions.
[2] Mr. Mahjoub has brought a motion for an order granting him leave to raise additional issues and to adduce additional evidence on his application for release brought pursuant to subsection 84(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act").
[3] The parties are agreed that the Court has the discretion to grant the relief requested and that the governing principle is what considerations of fairness and natural justice require. The parties are also agreed that as a matter of law an adequate factual and evidentiary record must exist upon which the constitutional arguments may be situated.
[4] I accept the submission of counsel for Mr. Mahjoub that Mr. Mahjoub seeks to raise issues of importance to him and that these are issues of importance to similar cases, all of which raise significant public interest. I also accept that Mr. Mahjoub is not responsible for any delay inherent in granting the relief which he seeks and that any concerns about prejudice or delay may be addressed through directions concerning the scheduling and the continuation of the hearing.
[5] I am therefore persuaded that the interests of justice require the Court to allow Mr. Mahjoub to raise additional issues and that this, in turn, requires that he be given leave to adduce additional evidence relevant to those issues.
[6] For these reasons, an order will issue allowing Mr. Mahjoub to raise the constitutional issues set out in the draft Notice of Constitutional Question which has been provided to the Court, save and except that paragraph 15 of that draft Notice of Constitutional Question must be revised to make clear that Mr. Mahjoub must direct submissions with respect to subsection 84(2) of the Act to this Court if he intends to challenge it. It is not sufficient for Mr. Mahjoub simply to reserve his right to challenge the provision later before a higher court.
[7] The order will also permit Mr. Mahjoub to adduce evidence with respect to the nature and conditions of his detention and the effect of that detention upon him.
[8] Counsel are requested to correspond with the Court by the close of the Registry on this Friday, March 12, with respect to a number of periods of five contiguous days when counsel would be available for the continuation of this matter, such dates commencing in early May and continuing through two or three months simply because of the difficulty in getting counsel together. When firm dates are set, counsel will then be canvassed with respect to final deadlines for their written submissions.
[9] These reasons will be reduced to writing and recorded in accordance with the obligations contained in the Federal Courts Act, R.S.C. 1985, c. F-7 and an order will issue embodying this decision.
"Eleanor R. Dawson"
_______________________________________
Judge
Ottawa, Ontario
March 9, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-1-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and THE SOLICITOR GENERAL OF CANADA
-and-
MOHAMED ZEKI MAHJOUB
PLACE OF HEARING: TORONTO, Ontario
DATE OF HEARING: March 8, 2004
REASONS FOR ORDER OF THE HONOURABLE
MADAM JUSTICE DAWSON
DATED: March 9, 2004
Delivered from the bench at Toronto, Ontario on March 8, 2004
APPEARANCES:
Mr. Donald MacIntosh FOR THE APPLICANT (MCI)
Mr. John O'Halloran FOR THE APPLICANT (CSIS)
Mr. John Norris FOR THE RESPONDENT
Ms. Barbara Jackman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT (MCI)
Deputy Attorney General of Canada and THE APPLICANT (CSIS)
Toronto, Ontario
Ruby & Edwardh FOR THE RESPONDENT
Toronto, Ontario
Ms. Barbara Jackman FOR THE RESPONDENT
Toronto, Ontario