Al Yamani v. Canada (Minister of Citizenship and Immigration) (T.D.) [2003] 3 F.C. 345
Date: 20021108
Docket: IMM-5696-01
Neutral citation: 2002 FCT 1162
BETWEEN:
ISSAM AL YAMANI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board, Adjudication Division, dated November 28, 2001, dismissing the applicant's motion for a stay of an inquiry under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act")to determine if he is or was a member of a terrorist organization, i.e. a person described in paragraph 27(1)(a) and subparagraph 19(1)(f)(iii)(B), on the basis of his membership in the Popular Front for the Liberation of Palestine ("PFLP") prior to 1992.
[2] This is the respondent's third attempt to inquire into the applicant's admissibility as a permanent resident due to his involvement with the PFLP. The first two attempts were set aside by this Court in 1996 and 2000. On this attempt, the applicant seeks to stop the inquiry on the following grounds:
(i) the Minister is barred from commencing a new inquiry by res judicata, i.e. the applicant was found not to be inadmissible on the same facts in the previous two judicial decisions;
(ii) in the alternative, the new inquiry should be barred by issue estoppel because the issue raised by the current allegations is the same issue that was dealt with in the prior proceedings;
(iii) the new inquiry is an abuse of process, a common law principle which can be invoked to stay this administrative proceeding; and
(iv) the new inquiry seeks to apply the amended provisions of the Act, which cannot be applied retrospectively to Mr. Al Yamani because they came into force after he was landed as a permanent resident and after he severed his ties with the PFLP.
FACTS
1985 to 2001
[3] The applicant is a stateless Palestinian man who immigrated to Canada on April 27, 1985 and was granted permanent resident status. He is the subject of a report which alleges under paragraph 27(1)(a) of the Act that he is a person described in subparagraph 19(1)(f)(iii)(B) on the basis of his membership in the PFLP prior to 1992, an organization engaged in terrorism.
1988 to 1992
[4] Mr. Al Yamani applied for Canadian citizenship on May 3, 1988. As a result of his application for citizenship, Mr. Al Yamani became the subject of security screening by the Canadian Security Intelligence Service. On May 29, 1992, he was notified that he was the subject of a report from the Solicitor General and the Minister to the Security Intelligence Review Committee ("SIRC") under subsection 39(2) of the Immigration Act. The report alleged Mr. Al Yamani was a person described in paragraphs 19(1)(e), 19(1)(g) and 27(1)(c) of the Act as they read prior to An Act to amend the Immigration Act and to amend other Acts in consequence thereof, S.C. 1992, c. 49 (the "Amendments"), which came into force on February 1, 1993.
1993 to 1994
[5] SIRC issued a report on August 3, 1993 in which it concluded that Mr. Al Yamani was a person described in paragraph 19(1)(g) because there were reasonable grounds to believe the applicant was a member of the PFLP. Based on the report, the Governor in Council issued a security certificate and the Minister issued a report under section 27 of the Act and a direction for an inquiry. The inquiry was stayed by this Court pending the outcome of Mr. Al Yamani's application for judicial review of the SIRC report and Governor in Council's direction, see Al Yamani v. Canada (Minister of Citizenship and Immigration) (1994), 80 F.T.R. 307.
1995 to 1996 - First Federal Court Judicial Review
[6] Mr. Justice MacKay heard the application for judicial review and set aside the SIRC report, see Al Yamani v. Canada (Minister of Citizenship and Immigration) (No. 2), [1996] 1 F.C. 174 (T.D.). The applicant argued the portion of paragraph 19(1)(g) that made him inadmissible based solely on his membership in an organization likely to commit acts of violence violated his freedom of association under subsection 2(d) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [R.S.C., 1985, Appendix II, No. 44]. His argument was summarized by Mr. Justice MacKay at p. 223:
The applicant submits that paragraph 19(1)(g) as drafted is overly broad. It does not distinguish between organizations dedicated exclusively to violent activities that would or might endanger the lives or safety of persons in Canada and other organizations with a variety of purposes which may embrace members with limited involvement only in peaceful purposes. It includes persons, solely because of their association, who are not themselves likely to engage in acts of violence or unlawful activities in Canada.
Mr. Justice MacKay accepted the applicant's arguments and held at pp. 229-230:
In my opinion, paragraph 19(1)(g), in so far as it relates to persons who there are reasonable grounds to believe are members of an organization that is likely to commit acts of violence that would or might endanger the lives or safety of persons in Canada, restricts freedom of association and that restriction is not a limitation demonstrably justified in a free and democratic society. Thus it contravenes paragraph 2(d) of the Charter and is no force or effect pursuant to section 52 of the Constitution Act, 1982 [...].
The Court allowed the application and set aside the SIRC report and declared the determination by the Governor in Council invalid. Mr. Justice MacKay returned the matter to SIRC for it to decide the appropriate course of action. His decision did not question any conclusions of fact or applications of the law included in the SIRC report and did not deal with the other inadmissible classes described in paragraph 19(1)(g).
1997 to 1998
[7] SIRC decided to recommence the hearing in 1997 and continued to apply the provisions of the Act as they read before the Amendments. In its report, SIRC made a number of findings, including:
(i) at p. 19, SIRC stated: "Quite apart from his activity in participating in the subversive acts of the PFLP, I cannot ignore evidence of Mr. Yamani's participation in the 1977 bombings of the Air Egypt office in the United Arab Emirates" and "Seen in this light, the Air Egypt bombing can be seen as a terrorist subversive act directed against the State of Israel, which Canada recognizes as a democracy";
(ii) at p. 20, SIRC stated: "There is no reason to believe that the PFLP is any less dedicated to its goals and would be any less willing to engage in terrorist actions in Canada if that was perceived to be required to allow it to achieve its goals. I conclude, therefore, that there is still a possibility that the PFLP may commit acts of violence in Canada";
(iii) at p. 21, SIRC stated: "I note Mr. Yamani was assigned his tasks as a communications link and was a travel facilitator for all PFLP activities in North America by PFLP Headquarters in the Middle East because of his location in Canada"; and,
(iv) at p. 21, SIRC concluded: "Based on all the evidence before me, I conclude that Mr. Yamani only makes admissions when he believes those admissions cannot be used against him, or when he is confronted with a certain level of knowledge on the part of the Service. Given his demonstrated commitment to the "PFLP cause" and his leadership position, I conclude that there are reasonable grounds to believe that Mr. Yamani is likely ("susceptible") to participate in unlawful activities of the PFLP, if called upon to do so."
SIRC determined the applicant was a person whom there are reasonable grounds to believe will engage in subversion as described in paragraph 19(1)(e), and a person whom there are reasonable grounds to believe will engage in acts of violence in Canada or in the unlawful activities of an organization that is likely to engage in acts of violence in Canada as described in paragraph 19(1)(g). SIRC's decision did not involve the portion of the paragraph 19(1)(g) found unconstitutional by Mr. Justice MacKay.
1999 to 2001 - Second Federal Court Judicial Review
[8] The applicant sought to have the report judicially reviewed by this Court. On March 14, 2000, Mr. Justice Gibson quashed the SIRC report, see Al Yamani v. Canada (Minister of Citizenship and Immigration) (No. 3), [2000] 3 F.C. 433 (T.D.). He held that SIRC erred by failing to properly analyse the meaning of "subversion" in paragraph 19(1)(e), stating at pp. 474-475:
[...] I am satisfied that, against a standard of correctness, the Review Committee erred in law in relying, without further analysis, on the definition or description of "subversion" provided in [Shandi (Re) (1992), 51 F.T.R. 252]. The Review Committee appears to have essentially ignored the compelling testimony before it of Professor Whitaker, quoted at some length earlier in these reasons, relating to the elusiveness of the concept subversion and his studied view that the concept involves two essential elements, a clandestine or deceptive element, which would appear to have been identified here, and, more importantly, an element of undermining from within. If one accepts that these elements are fundamental to any definition of subversion, then it is patently obvious that the applicant could not have been engaged in subversion against Israel, either directly or through his support of, and membership in, the PFLP.
Mr. Justice Gibson also found SIRC had failed to properly analyse the evidence before it in reaching the conclusion the applicant was a person described in paragraph 19(1)(g). He stated at p. 476:
The Review Committee makes no mention of the evidence before it that the PFLP is a "spent force". It does not reject the evidence from the applicant that the PFLP has no interest in Canada. The Review Committee cites no evidence before it that would make its conclusion that "there is still a possibility that the PFLP may commit acts of violence in Canada" anything more than sheer speculation.
The matter was remitted to SIRC for reconsideration by a differently constituted panel.
[9] The applicant was advised on October 17, 2000 that the Solicitor General and the Minister would no longer be pursuing a security report. Nonetheless, the applicant's file was passed to immigration enforcement and the Minister issued a report and direction for inquiry, alleging the applicant was a person named in paragraph 27(1)(a) and subparagraph 19(1)(f)(iii)(B) as they read after the Amendments. An inquiry was held before the Adjudication Division of the Immigration and Refugee Board on October 11 and 12, 2001. The applicant filed a preliminary motion seeking an order staying the inquiry or dismissing the allegations against him. His motion was denied and is now the subject of this application for judicial review.
RELEVANT LEGISLATION
(A) Relevant sections of the Act prior to the Amendments
[10] Prior to the Amendments, paragraphs 19(1)(e) and (g) of the Act stated:
19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
(e) persons who have engaged in or there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest;
[...]
(g) persons who there are reasonable grounds to believe will engage in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage in such acts of violence;
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
[...]
e) celles qui, s'étant livrées à des actes d'espionnage où de subversion contre des institutions démocratiques au sens ou cette expression s'entend au Canada, ne peuvent convaincre le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national ou celles dont on peut penser, pour des motifs raisonnables, qu'elles se livreront à ces actes;
[...]
g) celles dont on peut penser, pour des motifs raisonnables, qu'elles commettront des actes de violence de nature à porter atteinte à la vie ou à la sécurité humaines au Canada, ou qu'elles appartiennent à une organisation susceptible de commettre de tels actes ou qu'elles sont susceptibles de prendre part aux activités illégales d'une telle organisation;
[11] Paragraph 27(1)(c) of the Act was repealed by the Amendments. Before the Amendments it stated:
27. (1) Where an immigration officer or a peace officer is in possession of information indicating that a permanent resident is a person who
[...]
(c) is engaged in or instigating subversion by force of any government,
[...]
the immigration officer or peace officer shall forward a written report to the Deputy Minister setting out the details of such information.
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas :
[...]
c) travaille ou incite au renversement d'un gouvernement par la force;
[12] Before the Amendments, subsection 40(1) of the Act stated:
40. (1) Where, after considering a report made by the Review Committee referred to in subsection 39(9), the Governor in Council is satisfied that the person with respect to whom the report was made is a person referred to in paragraph 39(2)(a) or (b), as the case may be, the Governor in Council may direct the Minister to issue a certificate to that effect.
40. (1) S'il est d'avis, après étude du rapport du comité de surveillance, que l'intéressé se trouve vraiment dans l'une des situations visées aux alinéas 39(2)a) ou b), le gouverneur en conseil peut ordonner au ministre de délivrer une attestation à cet effet.
(B) Relevant transitional provision
[13] There is a relevant transitional provision in section 110 of An Act to amend the Immigration Act and to amend other Acts in consequence thereof, supra:
110. Any inquiry or hearing under any provision of the Immigration Act amended or repealed by this Act that was commenced before the coming into force of the amendment or repeal shall continue to a determination as though that provision had not been amended or repealed.
110. Les enquêtes ou audiences prévues par des dispositions de la Loi sur l'immigration modifiées ou abrogées par la présente loi sont tenues, et les décisions auxquelles elles donnent lieu sont rendues, comme si ces dispositions n'avaient pas été modifiées ou abrogées si, à la date d'entrée en vigeur de la modification ou de l'abrogation, elles avaient été commencées.
(C) Relevant sections of the Act after the Amendments
[14] After the Amendments, subparagraph 19(1)(f)(iii)(B) of the Act stated:
19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
f) persons who there are reasonable grounds to believe
[...]
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
[...]
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest;
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :
[...]
f) celles dont il y a des motifs raisonnables de croire qu'elles_:
[...]
(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée_:
[...]
(B) soit à des actes de terrorisme,
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;
[15] Paragraph 27(1)(a) of the Act stated:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l);
27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas_:
a) appartient à l'une des catégories non admissibles visées aux alinéas 19(1)c.2), d), e), f), g), k) ou l);
[16] Section 34 of the Act is relevant to the res judicata defence raised by the applicant. It was not amended in 1993:
34. No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103.
34. Les décisions rendues en application de la présente loi n'ont pas pour effet d'interdire la tenue d'une autre enquête par suite d'un autre rapport fait en vertu de l'alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d'une arrestation et d'une garde effectuées à cette fin en vertu de l'article 103.
[17] After the Amendments, subsection 40(1) stated:
40. (1) Where, after considering a report made under subsection 39(9) by the Review Committee or the person appointed under subsection 39.1(1), the Governor in Council is satisfied that the person with respect to whom the report was made is a person described in paragraph 19(1)(c.2), subparagraph 19(1)(d)(ii), paragraph 19(1)(e), (f), (g), (k) or (l) or 27(1)(a.1), subparagraph 27(1)(a.3)(ii) or paragraph 27(1)(g) or (h), the Governor in Council may direct the Minister to issue a certificate to that effect.
40. (1) S'il est d'avis, après étude du rapport fait en vertu du paragraphe 39(9) par le comité de surveillance ou la personne nommée au titre du paragraphe 39.1(1), que l'intéressé appartient à l'une des catégories visées à l'alinéa 19(1)c.2), au sous-alinéa 19(1)d)(ii), aux alinéas 19(1)e), f), g), k) ou l) ou 27(1)a.1), au sous-alinéa 27(1)a.3)(ii) ou aux alinéas 27(1)g) ou h), le gouverneur en conseil peut ordonner au ministre de délivrer une attestation à cet effet.
STANDARD OF REVIEW
[18] Questions of law that "stray from the core expertise of the tribunal" are a factor favouring the standard of correctness, see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 38. While the Court usually grants a degree of deference to the decisions of an adjudicator, in the case at bar the decision involved questions of law that were not within the core expertise of an adjudicator. Therefore, the appropriate standard of review is correctness.
ANALYSIS
1. Res judicata
(a) Cause of action estoppel
[19] Before the adjudicator the applicant raised the defences of res judicata and issue estoppel. Res judicata is defined in Black's Law Dictionary (St. Paul, MN: West Group, 1999) as:
[Latin "a thing adjudicated"] 1. An issue that has been definitively settled by judicial decision 2. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been - but was not - raised in the first suit. [...]
[20] While in substance the applicant has raised two different defences, at common law, issue estoppel is merely one of two forms of res judicata. The other form of res judicata is properly referred to as cause of action estoppel, see Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460. Although the concepts of res judicata, issue estoppel and cause of action estoppel are often intertwined, they have distinct meanings. The principles of these two forms of estoppel can be seen in the two-part definition of res judicata cited above and were recently summarized by the Federal Court of Appeal in Apotex Inc. v. Merck and Co., 2002 FCA 210 at paras. 24-25:
The relevant principles behind the doctrine of res judicata were established in two leading Supreme Court of Canada decisions: Angle v. M.N.R., [1975] 2 S.C.R. 248 and Doering v. Town of Grandview, [1976] 2 S.C.R. 621. In Angle, supra, at 254 Dickson J. noted that res judicata essentially encompasses two forms of estoppel, being "cause of action estoppel" and "issue estoppel," both based on similar policies. First, there should be an end to litigation, and second, an individual should not be sued twice for the same cause of action.
These two estoppels, while identical in policy, have separate applications. Cause of action estoppel precludes a person from bringing an action against another where the cause of action was the subject of a final decision of a court of competent jurisdiction. Issue estoppel is wider, and applies to separate causes of action. It is said to arise when the same question has been decided, the judicial decision which is said to create the estoppel is final, and the parties to the judicial decision or their privies are the same persons as the parties to the proceedings in which the estoppel is raised (see Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853., at p. 93, cited by Dickson J. in Angle supra, at 254). [emphasis added]
Cause of action estoppel captures the essence of the applicant's res judicata defence, which was based on Doering v. Grandview (Town), [1976] 2 S.C.R. 621, a Supreme Court of Canada decision that dealt with cause of action estoppel. For this reason, the Court will treat the applicant's res judicata defence as cause of action estoppel.
[21] The key tenet of cause of action estoppel is that a plaintiff must bring forward the subject matter of the whole case relating to the cause of action at one time, once and for all, and every remedy flowing from the cause of action based on the subject matter, see Donald J. Lange, The Doctrine of Res Judicata in Canada (Toronto: Butterworths, 2000) at p. 111. The same principle applies to defendants, who must bring forward every defence based on the subject matter at one time.
[22] The applicant submits the Minister is barred from commencing a new inquiry by res judicata based on an inadmissibility ground that was known but not advanced in the earlier proceedings. Counsel for the applicant requested the adjudicator stay the proceeding on this basis. The adjudicator ruled the inquiry could proceed because the allegation in the present inquiry was different than those raised in prior proceedings. The adjudicator drew a distinction based on the nature of the inadmissible classes and that both of the earlier proceedings were brought under pre-Amendment provisions.
[23] While it is somewhat difficult to ascertain what is the exact "cause of action" in this case, it is immaterial to the result. The cause of action in the earlier proceedings could be interpreted narrowly as the applicant's inadmissibility under paragraphs 19(1)(e) and (g). This was the approach adopted by the adjudicator. The new cause of action, whether the applicant is inadmissible under subparagraph 19(1)(f)(iii)(B), is different than the cause of action in the prior proceedings and would not be barred by cause of action estoppel.
[24] However, even if the cause of action in the prior proceedings is interpreted broadly as whether the applicant is inadmissible to Canada, cause of action estoppel would still not apply. As the Federal Court of Appeal stated in Apotex, supra, cause of action estoppel precludes a person from bringing an action against another where the cause of action was the subject of a final decision of a court of competent jurisdiction. Mr. Al Yamani has never been the subject of a final decision on his inadmissibility. The issue of Mr. Al Yamani's inadmissibility has been the subject of two SIRC reports, but it has never come before the Adjudication Division, the body with the authority to make a final determination on an individual's inadmissibility. SIRC's function is to make a recommendation to the Governor in Council on the issuance of a certificate under subsection 40(1). While two inquiries concerning the applicant have been commenced, both were halted at the preliminary stage by a successful application for judicial review of the relevant SIRC report. Nor were the decisions of this Court in Al Yamani (No. 2) and Al Yamani (No. 3) final pronouncements on his inadmissibility. This is clear from the Court's decision to sent the matter back to SIRC for redetermination on two occasions. The issue has not been finally decided and remains open.
[25] Accordingly, the Court finds the adjudicator did not err by finding the new inquiry was not barred by the defence of res judicata.
(b) Issue estoppel
[26] In Apotex, supra, the Federal Court of Appeal defined issue estoppel as occurring when the same question has been decided in a judicial decision between the same parties.
[27] The applicant submits that issue estoppel applies to the new inquiry. The applicant contends the new inquiry should be barred by issue estoppel because the issue raised by the current allegations, whether the applicant is inadmissible due to his involvement in the PFLP prior to 1992, is the same issue that was dealt with in the prior proceedings. According to the applicant, the Court finally determined in Al Yamani (No. 2) that his prior membership in the PFLP could not be used as a basis for removal.
[28] Lord Guest enunciated three requirements for issue estoppel in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at p. 935 (H.L.). Those three requirements are:
i. that the same question has been decided;
ii. that the judicial decision which is said to create the estoppel was final; and,
iii. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
These three requirements were adopted as part of Canadian law by the Supreme Court of Canada in Angle v. M.N.R., [1975] 2 S.C.R. 248, and have been used in the area of immigration law by the Federal Court of Appeal, see Canada (Minister of Employment and Immigration) v. Chung, [1993] 2 F.C. 42. A tribunal decision can be considered a "judicial decision" that gives rise to issue estoppel in a subsequent tribunal proceeding, see Danyluk, supra at paras. 21-22 and Canada (A.G.) v. Canada (Canadian Human Rights Commission) (1991), 43 F.T.R. 47.
[29] Issue estoppel does not apply to the case at bar. While the third part of the common law test for issue estoppel is met in this case, the first two are not. The first part of the test is not met because the current inquiry does not deal with the same question as that raised in the prior proceedings. The issue raised in the current inquiry whether the applicant is a person described in paragraph 27(1)(a) and subparagraph 19(1)(f)(iii)(B) on the basis of his membership in the PFLP prior to 1992. This is not the same question as the one dealt with by the Court in Al Yamani (No. 2). At issue in Al Yamani (No. 2) was the constitutionality of the portion of paragraph 19(1)(g) that deemed a person inadmissible based on his or her membership in an organization likely to engage in acts of violence. Mr. Justice MacKay's expressly limited his decision to the unconstitutionality of paragraph 19(1)(g) at p. 241:
I find that the applicant has not established that conclusions of fact or applications of the law included in the SIRC report were in error in any way that would warrant intervention by the Court. The sole ground for setting aside the conclusion of SIRC is that it is based on a portion of paragraph 19(1)(g) which I find is not constitutional. In completing its investigation in relation to the report under subsection 39(2) of the Act by the Ministers concerned, made in relation to the applicant, SIRC itself can best determine the appropriate arrangement. In my opinion, the conclusions reached in the report of August 3, 1993 stand, except for the conclusion that the applicant is a person described within the one class of persons described in paragraph 19(1)(g) which I have found contravenes paragraph 2(d) of the Charter in a manner not saved by section 1. [...][emphasis added]
Nor did Mr. Justice MacKay rule out the use of the applicant's prior membership in the PFLP in future proceedings as a basis for his removal under another part of section 19. This is demonstrated by the following statement found at p. 241:
[...] is my opinion that paragraph 19(1)(g), in so far as it relates to "persons who there are reasonable grounds to believe__. . .__are members of__. . . an organization that is likely to engage in . . . acts" ("of violence that would or might endanger the lives or safety of persons in Canada"), contravenes paragraph 2(d) of the Charter which ensures, to everyone, freedom of association. I find it is not established that this limitation of that freedom under the impugned portion of the paragraph in issue is a reasonable limit demonstrably justified in a free and democratic society. I note that this determination does not relate to other classes of persons described in paragraph 19(1)(g) of the Act.[emphasis added]
In this statement, Mr. Justice MacKay indicated that SIRC, or the Minister, could launch new proceedings dealing with Mr. Al Yamani based on inadmissible classes described in other parts of section 19. This is precisely what the Minister has done in this case. The question raised in the new inquiry is not the same one dealt with in Al Yamani (No. 2).
[30] Further, Mr. Justice MacKay's findings with respect to freedom of association are not applicable to subparagraph 19(1)(f)(iii)(B) because it differs in substance from the old paragraph 19(1)(g). Paragraph 19(1)(f) now includes a clause excepting from inadmissibility "persons who have satisfied the Minister that their admission would not be detrimental to the national interest". In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para. 110, the Supreme Court of Canada stated this clause permits an applicant "to establish that the alleged association with the terrorist group was innocent" and held that subparagraph 19(1)(f)(iii)(B) does not infringe either subsection 2(b) or 2(d) of the Charter.
[31] The second part of the test for issue estoppel is not met because the decisions in the prior proceedings were not final determinations on inadmissibility. This issue was dealt with above in determining that cause of action estoppel did not apply. As the three part test for issue estoppel is not met, the adjudicator did not err in rejecting the applicant's issue estoppel defence.
(c) Application of section 34
[32] Even if this was a case of res judicata, section 34 of the Immigration Act displaces the principle of res judicata with respect to actions taken under section 27 of the Act, see Rabbat v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 46 (T.D.), Cortez v. Canada (Secretary of State) (1994), 74 F.T.R. 9, Halm v. Canada (Minister of Citizenship and Immigration), [1996] 1 F.C. 547 (T.D.), and Yousif v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 85.
[33] Counsel for the applicant submits that the Court should not apply section 34 because the new report, although issued under a different section of the Act, is based on the same set of facts as the reports that initiated the prior proceedings. Counsel argues that in its previous decisions on section 34, the Court was faced with either a flaw in the first proceeding or a second inquiry based on a different set of facts, neither of which is the case here.
[34] This Court has already decided that section 34 applies to proceedings commenced under a different ground of inadmissibility but based on the same set of facts, see Cortez, supra.The facts in the case at bar are strikingly similar to those in Cortez. A report on the applicant was made under section 27 after the applicant was convicted of impaired driving. The basis of the report was inadmissibility under subparagraphs 19(2)(a)(i) and (ii) as they read before February 1, 1993. The adjudicator concluded that the allegation was not valid because subparagraphs 19(2)(a)(i) and (ii) discriminated against the applicant on the basis of age as determined in Ruparel v. Canada (Minister of Employment and Immmigration), [1990] 3 F.C. 615. After the Amendments came into force, a new report regarding the applicant was issued under section 27, alleging inadmissibility under an amended paragraph 19(2)(a) on the same set of facts. Mr. Justice Rouleau held at p.13 that the inquiry could go forward because "section 34 clearly excludes res judicata in the specific context of section 27 of the Act".
[35] The case at bar also involves an inquiry under a new paragraph of the Act, not in force at the time of the offence, based on the same set of facts as those alleged in a previous inquiry where the provision in question was held to be unconstitutional. The Court adopts the reasoning of Mr. Justice Rouleau and find that section 34 excludes the application of res judicata. The adjudicator did not err by rejecting the applicant's res judicata and issue estoppel defences.
2. Abuse of process
Five Factors
[36] The applicant submits that the adjudicator erred by not applying the common law doctrine of abuse of process to stay these proceedings. The applicant alleges abuse of process based five factors:
1. the current inquiry is based on the same facts as the prior proceedings, the only difference being the subsection of the Act engaged;
2. it was the Minister's litigation choice to proceed in 1997 under the Act as it read before February 1, 1993, and it is an abuse of process for Minister to now commence a new inquiry using the amended provisions of the Act, something it could have done in 1997;
3. the applicant has already been the subject of two proceedings on this matter and proceeding again is unduly oppressive;
4. the length of time of the proceedings; and
5. although the allegations may appear serious, on an objective consideration of the facts, they are not as serious as they appear.
The Test
[37] The Supreme Court of Canada has recognized that there exists a common law principle of abuse of process that can be invoked to stay administrative proceedings when allowing them to continue would be oppressive, see Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paras. 116-117. In Blencoe, Mr. Justice LeBel, dissenting in part, enunciated the test for an administrative law abuse of process at para. 144 as:
When we ask whether there has been an administrative law abuse of process, we ask the same fundamental question: has an administrative agency treated people inordinately badly?
After considering the five factors identified by the applicant in totality, the Court finds Mr. Al Yamani has not been treated "inordinately badly" and there is no abuse of process.
Factor 1
[38] With respect to the first factor identified by the applicant, the Court has already determined above that the Minister is entitled to launch a new inquiry based on the same facts as the prior proceedings, but engaging a different subsection of the Act.
Factor 2
[39] The second factor identified by the applicant is the Minister's decision to proceed on the basis of the post-Amendment provisions, something which it did not do in 1997. The Court does not find the Minister made a binding litigation choice to proceed on the basis of the pre-Amendment grounds of inadmissibility in 1997 that now bars it from proceeding on the basis of subparagraph 19(1)(f)(iii)(B). After Al Yamani (No. 2), this matter was sent back to SIRC and the hearing was recommenced. SIRC was still proceeding on the basis of the Minister's report dated May 29, 1992. Section 110 of An Act to amend the Immigration Act and to amend other Acts in consequence thereof, supra, required any inquiry or hearing commenced under a provision of the Immigration Act amended or repealed by the Amendments, to continue to a determination as though that provision has not been amended or repealed. In accordance with this transitional provision, the Minister was required to proceed on the basis of the pre-Amendment grounds of inadmissibility before SIRC in 1997.
[40] Following Al Yamani (No. 3), the Minister did not pursue a security certificate on the basis of the report dated May 29, 1992. Rather, the file was passed to immigration enforcement and a new report and direction for inquiry, based on the post-Amendment provisions of the Act, was issued. As the inquiry is not proceeding on the basis of the report issued prior to the Amendments, section 110 does not require the Minister to continue to apply the pre-Amendment provisions to Mr. Al Yamani.
[41] Nor did the Minister commit an abuse of process by failing to raise the post-Amendment grounds of inadmissibility in 1997. The applicant in Halm, supra also argued it was an abuse of process for the Minister to engage in "gating," by only advancing certain grounds of inadmissibility after a deportation order based on previously advanced grounds was set aside. Mr. Justice Rothestein referred to the scope of section 34 in allowing the Minister to commence new inquiries and stated at p. 570:
[...] counsel for the applicant argues that section 34 does not authorize a second inquiry when grounds for that inquiry are known and could have been advanced at the earlier inquiry. However, I see nothing in section 34 that implies that it is not applicable in these circumstances. Section 34 is cast in broad terms. Taken to its logical conclusion, applicant's argument means that if there are grounds for deportation that are known but are not advanced by the Minister in an inquiry, section 34 does not authorize a further inquiry, and Canada loses its right to deport an undesirable alien. Not even applicant's counsel argues for such a result.
Under the Act, the Minister is permitted to engage in "gating" and was not required by law to advance the post-Amendment inadmissibility grounds in 1997.
Factors 3 and 4
[42] The third and fourth factors identified by the applicant, that another inquiry is unduly oppressive and the length of time taken by these proceedings, do not give rise to an abuse of process. While the length of time and the number of proceedings involved in this case are disturbing to the Court, there is no evidence that this is due to any period of prolonged inactivity on the part of the respondents. Nor has the applicant alleged the respondent was acting with an improper motive in
commencing another inquiry. The primary reason this matter has taken over ten years is the applicant's successful pursuit of legal remedies available to him. In launching a new inquiry the Minister has dutifully complied with the previous orders of this Court and acted within the authority granted to it under the Act. Delay under these circumstances is an insufficient ground for the Court to find an abuse of process, see Estrada v. Minister of Employment and Immigration (1987), 8 F.T.R. 317, and Yousif, supra.
Factor 5
[43] While these four factors considered individually do not give rise to an abuse of process, the Court recognizes that they must be considered in their totality and in conjunction with the gravity of the allegation against the applicant. The Supreme Court of Canada in R. v. Keyowski, [1988] 1 S.C.R. 657 identified the seriousness of the alleged crime as a factor to be considered when dealing with abuse of process in a criminal law context. In Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at p. 429, the Supreme Court of Canada was faced with deciding whether a stay of proceedings was the appropriate remedy for an affront to judicial independence. In outlining the appropriate factors to be considered in granting a stay of proceedings, the Court acknowledged at para. 92 that:
[...] there may be instances in which it will be appropriate to balance the interests that would be served by the granting of a stay of proceedings against the interest that society has in having a final decision on the merits. This is not to say, of course, that something akin to an egregious act of misconduct could ever be overtaken by some passing public concern. Rather, it merely recognizes that in certain cases, where it is unclear whether the abuse is sufficient to warrant a stay, a compelling societal interest in having a full hearing could tip the scales in favour of proceeding.
The Court declined to grant a stay of proceedings in Tobiass. One of the reasons it gave at para. 109 was:
[...] society's interest in having a final decision on the merits is obvious. It is imperative that the truth should come to light. If it is not proven that the appellants did the things they are said to have done, then they will retain their citizenship. But if some or all of the alleged acts are proven then the appropriate action must be taken. What is at stake here, in however small a measure, is Canada's reputation as a responsible member of the community of nations. In our view, this concern is of the highest importance.
In accordance with these directions from the Supreme Court of Canada, this Court must consider the gravity of the allegation in light of Canada's reputation as a responsible member of the community of nations.
[44] Although the factors identified by the applicant are compelling when considered in totality, in the words of the Supreme Court in Tobiass at para. 107, the societal interest in seeing this case through to its conclusion "tips the balance against a stay." The 1997 SIRC report indicated the applicant was involved in the PFLP's terrorist activities, including the bombing of an Air Egypt office in 1977, and that the PFLP was willing to commit acts of violence in Canada if this was necessary to achieve its goals. If these allegations are proven to be true, they constitute crimes of a serious nature and appropriate action must be taken. As the Supreme Court of Canada stated in Suresh, supra at para. 4, terrorism is a "manifest evil" and "[g]overnments, expressing the will of the governed, need the legal tools to effectively meet this challenge." On the other hand, if the applicant has not been involved with the terrorist wing of the PFLP, he will have a chance to demonstrate at the inquiry that he is a person whose admission "would not be detrimental to the national interest" in accordance with section 19(1)(f). If successful, he will retain his status as a permanent resident.
[45] The Court is of the opinion that the matter should be allowed to proceed to an inquiry. There has been no abuse of process in this case. The Minister has dutifully complied with the provisions of the Act and this Court's orders in Al Yamani (No. 2) and Al Yamani (No. 3) in bringing the new inquiry.
3. Retrospectivity
[46] The applicant submits the adjudicator erred in law by concluding the amended provisions of the Act (amended February 1, 1993) apply to Mr. Al Yamani even though they came into force after he was landed as a permanent resident in Canada in 1985 and after he severed his ties with the PFLP in 1992.
[47] In Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301 Madam Justice L'Heureux-Dubé, delivering the judgment of the Court, reiterated the basic principle of statutory interpretation that if there is confusion with respect to the meaning of a law, it should not be construed so as to have retrospective effect. However, at pp. 317-319 she stated the presumption against retrospectivity does not apply if the goal of the statute is not to punish the person, but to protect the public. The proper view is that a statute does not have a retrospective effect if the real aim of the law is prospective and it is designed to protect the public in the future. She stated at p. 320:
Elmer Driedger summarizes the point in "Statutes; Retroactive, Retrospective Reflections" (1978), 56 Can. Bar Rev. 264, at p. 275:
In the end, resort must be had to the object of the statute. If the intent is to punish to penalize a person for having done what he did, the presumption applies, because a new consequence is attached to a prior event. But if the new punishment or penalty is intended to protect the public, the presumption does not apply.
Nor is a statute retrospective simply because it destroys vested rights while protecting the public, see E.A. Driedger, The Composition of Legislation; Legislative Forms and Precedents (Ottawa: Department of Justice, 1976) at p. 112. While there is a general rule that Courts will attempt to find an interpretation of a statute that least disturbs vested rights, if the statute is clear and unambiguous it will operate according to its terms whether or not vested rights are prejudicially effected (see Driedger, supra at p. 107).
[48] As discussed above, these provisions are intended to protect the public in the future. By providing that a permanent resident, such as Mr. Al Yamani, may be the subject of a report if he is a member of an inadmissible class named in paragraph 27(1)(a), which includes the new subparagraph 19(1)(f)(iii)(B), i.e. "persons who there are reasonable grounds to believe are or were members of an organization ... engaged in ... terrorism ...," the law ensures that Canada protects the public from terrorists.
[49] Neither paragraph 27(1)(a) nor subparagraph 19(1)(f)(iii)(B) is being applied retrospectively. It is not retrospective legislation to adopt a rule that henceforth excludes persons from Canada on the basis of their past conduct, see Rudolph v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 653 at para. 6 (C.A.). Mr. Justice MacKay applied this principle in McAllister v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 190 at para. 52 (T.D.), and held that subparagraph 19(1)(f)(iii)(B) does not have retrospective effect when applied to refugee claimants. Likewise, the Court finds subparagraph 19(1)(f)(iii)(B) does not have retrospective effect when applied to permanent residents.
[50] The real issue is whether the applicant's vested right to remain in Canada as a permanent resident can be revoked for events that occurred before the provisions came into force. The language of the relevant provisions of the Act is clear and unambiguous. When paragraph 27(1)(a) is read in conjunction with subparagraph 19(1)(f)(iii)(B), the wording reveals the provisions are intended to cover events that occurred before they came into force. Paragraph 27(1)(a) states:
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
(a) is a member of an inadmissible class described in paragraph 19(1)(c.2), (d), (e), (f), (g), (k) or (l); [emphasis added]
Paragraph 27(1)(a) establishes that permanent resident may be the subject of a report if they are currently a member of the inadmissible class described in paragraph 19(1)(f)(iii)(B). Paragraph 19(1)(f)(iii)(B) states:
19. (1) No person shall be granted admission who is a member of any of the following classes:
[...]
f) persons who there are reasonable grounds to believe
[...]
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
[...]
(B) terrorism,
except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; [emphasis added]
The words "are or were members" indicate that a person is currently a member of the inadmissible class described in paragraph 19(1)(f)(iii)(B) if at any time in his or her life that person was a member of a terrorist organization. The provision does not require a person to have held membership at some time after the provision came into force. The effect of these provisions is to remove the applicant's vested right to be a permanent resident in Canada. Consequently, it is irrelevant that the applicant severed his ties with the PFLP before the Amendments came into force. For a similar situation involving subsection 19(2), see Cortez, supra.
[51] The applicant has submitted that this interpretation of sections 19 and 27 will mean that an applicant could be granted permanent residence one day, only to have it taken away a day later by an amendment to the immigration laws. This Court acknowledges that is a possibility. Nevertheless, as permanent residents do not have an unqualified right to remain in Canada, it is the prerogative of the federal Parliament to adopt an immigration policy prescribing the conditions under which permanent residents are permitted to remain in Canada, see Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711. It is not the role of this Court to question Parliament's decision to create new grounds of inadmissibility that may result in the removal of individuals who have previously been granted permanent residence in this country.
[52] Accordingly, the Adjudicator correctly interpreted and applied the rules of statutory interpretation with respect to retrospectivity.
DISPOSITION
[52] For the reasons stated above, the Court denies this application and orders that the inquiry proceed. Counsel will have ten days to propose questions of general serious importance for certification and ten days thereafter to file submissions in response to the proposed questions.
(Signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
NOVEMBER 8, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5696-01
STYLE OF CAUSE: ISSAM AL YAMANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 23, 2002
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: FRIDAY, NOVEMBER 8, 2002
APPEARANCES BY: Ms. Barbara Jackman and Mr. Ron Poulton
For the Applicant
Mr. Donald McIntosh and Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Ms. Barbara Jackman
Barrister and Solicitor
596 St. Clair Ave. West,Unit 3
Toronto,Ont. M6C-1A6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021108
Docket: IMM-5696-01
BETWEEN:
ISSAM AL YAMANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER