Jaballah (Re)

Jaballah (Re)

Court found s.24(2) inapplicable because applicant failed to establish the necessary causal or temporal link between the Charkaoui I disclosure breach and his voluntarily given prior testimony; s.13 did not apply because security certificate proceedings are not criminal and do not attract "true penal consequences" and Re Bagri could not expand s.13; by operation of s.7 and IRPA language a person named in a certificate is not compellable and therefore prior in‑court testimony cannot be used by the Ministers as part of their case‑in‑chief, but if the named person elects to testify the Ministers may use prior testimony for impeachment/cross‑examination; testimony given to the IRB was...

Citation
2010 FC 224
Parties
Named Person/applicant: Mahmoud Es‑Sayyid Jaballah; Respondents/ministers: Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness; Special Advocate: John Norris
Court
Federal Court
Jurisdiction
Canada
Judgment Date
26 February 2010
Procedural Posture
Security Certificate Referral Under the Immigration and Refugee Protection Act (irpa) / Interlocutory Motion During Reasonableness Determination Concerning Admissibility/use of Prior Testimony and Charter Remedies
Outcome
Motion allowed in part
Legal Topics
Security Certificate, Charter S.7 (right to Life Liberty Security and Fair Hearing), Charter S.13 (self‑incrimination Witness Immunity), Charter S.24(2) Exclusion Remedy, Use and Derivative‑use Immunity, Paragraph 83(1)(h) IRPA Discretion, Compellability of Witnesses
Source Language
English
Immigration Law Constitutional Law Evidence Law National Security Law Security Certificate Charter S.7 (right to Life Liberty Security and Fair Hearing) Charter S.13 (self‑incrimination Witness Immunity) Charter S.24(2) Exclusion Remedy +3 more

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Parties

Mahmoud Es‑Sayyid Jaballah

Named Person/applicant

Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness

Respondents/ministers

John Norris

Special Advocate

Procedural Posture

Security Certificate Referral Under the Immigration and Refugee Protection Act (irpa) / Interlocutory Motion During Reasonableness Determination Concerning Admissibility/use of Prior Testimony and Charter Remedies

Legal Issues

  1. 1 Whether prior testimony should be excluded under s.24(2) Charter
  2. 2 Whether s.13 Charter precludes use of prior testimony in these proceedings
  3. 3 Whether paragraph 83(1)(h) IRPA permits or limits reception and use of prior testimony and application of use/derivative use immunity

Ratio Decidendi

Court found s.24(2) inapplicable because applicant failed to establish the necessary causal or temporal link between the Charkaoui I disclosure breach and his voluntarily given prior testimony; s.13 did not apply because security certificate proceedings are not criminal and do not attract "true penal consequences" and Re Bagri could not expand s.13; by operation of s.7 and IRPA language a person named in a certificate is not compellable and therefore prior in‑court testimony cannot be used by the Ministers as part of their case‑in‑chief, but if the named person elects to testify the Ministers may use prior testimony for impeachment/cross‑examination; testimony given to the IRB was...

Court Disposition

Motion allowed in part

Orders

  • Ministers are prohibited from relying, as part of their case‑in‑chief, on Mr. Jaballah's testimony from prior security certificate hearings (1999, 2001 and related court hearings).
  • If Mr. Jaballah elects to testify in the current proceeding, Ministers may cross‑examine him on his prior testimony from the prior certificate proceedings and on his 2006 testimony.