Date: 20030428
Docket: DES-4-02
Citation: 2003 FCT 520
IN THE MATTER OF a certificate signed pursuant to
subsection 77(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, (the "Act");
AND IN THE MATTER OF the referral of that certificate
to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF Mohamed Harkat.
These are my reasons delivered orally on Thursday, April 24, 2003 after the conclusion of argument and a brief adjournment. These reasons are filed pursuant to section 51 of the Federal Court Act.
[2] Mr. Mohamed Harkat is the subject of a proceeding instituted by the Solicitor General of Canada and the Minister of Citizenship and Immigration ("Ministers") pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") for determination as to whether the certificate signed by them, stating that Mohamed Harkat is inadmissible to Canada under paragraphs 34(1)(c) and 34(1)(f) of the Act, is reasonable. As such, subsection 78(i) of the Act requires that Mr. Harkat be provided with an opportunity to be heard regarding his alleged inadmissibility. That opportunity was to be afforded in a five-day hearing, scheduled to commence on Monday, April 28, 2003. On Thursday, April 24, 2003 Mr. Harkat sought an adjournment of the scheduled hearing.
[3] Through his counsel, Mr. Harkat acknowledged that the Court and counsel for the Ministers were ready to proceed, and recognized that the consequence of granting the adjournment he requested would be to delay proceedings for what might be "many months".
[4] The adjournment was sought by Mr. Harkat on the grounds that:
1. On Wednesday, April 23, 2003, counsel for Mr. Harkat was informed for the first time that the expert witness who was to have testified on Mr. Harkat's behalf as the first witness at the hearing was no longer prepared to participate at all in the hearing.
2. On Tuesday, April 22, 2003, Mr. Harkat had received further disclosure of relevant information, consisting of four lines.
3. Co-counsel for Mr. Harkat would not be available for the first two days of the scheduled hearing.
[5] Counsel for the Ministers opposed the requested adjournment, although they fairly conceded that Mr. Harkat should be given the opportunity to engage new experts who could testify at a later date. Counsel for the Ministers wished to commence the hearing with other available witnesses in order to avoid any perception of delay.
[6] In considering these submissions, I begin from the premise that the Act , in subsection 78(c), mandates the judge designated to hear the proceeding to deal with matters as "expeditiously as the circumstances and considerations of fairness and natural justice permit".
[7] In my view, neither the second nor the third ground advanced on Mr. Harkat's behalf justify any adjournment. The information provided to Mr. Harkat previously this week, in my view, and as submitted by counsel for the Ministers, simply supplements the information provided to Mr. Harkat in December of 2002. It raises nothing sufficiently new to warrant an adjournment. It was not suggested that the inavailability of co-counsel for two days would so prejudice Mr. Harkat as to warrant an adjournment. Indeed, counsel for Mr. Harkat fairly conceded in argument that if this was the only issue to have arisen he would not have sought an adjournment.
[8] In my view, however, the effect of the sudden withdrawal of the expert witness is such that considerations of fairness and natural justice require that Mr. Harkat be given the adjournment which he seeks. I so conclude because counsel for Mr. Harkat has already spoken to one potential expert witness who he says will likely testify as an expert, and counsel has made other calls to obtain an expert on a second topic which the previous expert was to have addressed. In sum, I am satisfied that it is reasonable to assume that an adjournment is not academic, but will permit experts to be engaged and expert evidence to be adduced. Given that, experts do not testify in a vacuum; they require a factual basis in the evidence to underpin their opinions. It would be unfair, in my view, to require Mr. Harkat to lead the fact based portion of the evidence he will adduce and rely upon before his counsel has had adequate time to consult with the new experts so as to prepare or be satisfied that he has prepared the evidence needed to support the opinions of the new experts.
[9] Counsel canvassed in argument whether the hearing could commence with any other evidence. The only witness which counsel for Mr. Harkat indicated would be able to provide evidence, not related to the expert evidence, was Mrs. Harkat. Counsel advised that Mrs. Harkat was upset as a result of the sudden withdrawal of the expert and the resultant delay, and that she was not, in his words, "in a state of mind to testify" next week. Counsel's assessment is relevant, as it goes to an issue of fairness, and in any event I am not satisfied that it is in the interest of the parties or the expeditious conclusion of this matter that the proceedings commence for the purpose of hearing only one witness. There would still be the same delay in then waiting for the new experts to be ready to testify.
[10] For these reasons, an order will issue adjourning the hearing to a date to be set through the office of the Judicial Administrator.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
April 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-4-02
STYLE OF CAUSE: IN THE MATTER OF a certificate signed pursuant to
subsection 77(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27, (the "Act");
AND IN THE MATTER OF the referral of that certificate
to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF Mohamed Harkat.
PLACE OF HEARING: Ottawa, Ontario
DATE OF CONFERENCE
CALL: April 24, 2003
REASONS FOR ORDER BY THE HONOURABLE MADAM JUSTICE DAWSON
DATED: April 28, 2003
APPEARANCES:
James Mathieson Counsel for the Minister of Citizenship and Immigration and
Michael Dale the Solicitor General of Canada
Bruce Engel Counsel for Mohamed Harkat
SOLICITORS OF RECORD:
Deputy Attorney General of Canada
Bruce Engel Counsel for Mohamed Harkat
Barrister & Solicitor
Ottawa, Ontario