Mahjoub, Re, (2012) 448 N.R. 356 (FCA)

• Judge: Stratas, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 15, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 448 N.R. 356 (FCA);2012 FCA 296

Mahjoub, Re (2012), 448 N.R. 356 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. JL.011

Mohamed Zeki Mahjoub (appellant) v. Minister of Immigration and Citizenship, Minister of Public Safety and The Attorney General of Canada (respondents)

(A-313-12; 2012 FCA 296; 2012 CAF 296)

Indexed As: Mahjoub, Re

Federal Court of Appeal

Stratas, J.A.

November 15, 2012.

Summary:

Mahjoub was detained under a ministerial security certificate. The public portion of the reasonableness hearing was adjourned. Documents stored in the breakout rooms at the Federal Court used by public counsel for Mahjoub and by the Ministers' counsel were unintentionally co- mingled and moved by Department of Justice (DOJ) personnel to an unused room of the DOJ offices. Upon DOJ counsel realizing that documents from Mahjoub's public counsel were also in the room, the room was sealed. Mahjoub moved for a permanent stay of proceedings, arguing that there had been a violation of his s. 7 and s. 8 Charter rights. He claimed a breach of his s. 7 rights under two separate categories: (a) a violation of his solicitor-client privilege, and (b) an abuse of process.

The Federal Court, in a decision reported 412 F.T.R. 216, granted the motion in part. The court found there to be an abuse of process in the residual category of conduct, and that a remedy was warranted to ensure that the Ministers' conduct did not undermine society's expectation in the administration of justice. A permanent stay of proceedings was not warranted. The court ordered that those members of the Ministers' litigation team who accessed the documents be permanently removed from the file, barred from working on the proceedings or having access to any of the materials or information relating to the file, and ordered not to discuss any information relating to the file with anyone or communicate such information to anyone. Mahjoub appealed and brought a motion seeking court-ordered state funding for legal representation in his appeal.

The Federal Court of Appeal, per Stratas, J.A., dismissed the motion.

Aliens - Topic 15

Definitions and general principles - Right to counsel - [See Courts - Topic 1761 ].

Civil Rights - Topic 4638

Right to counsel - Appointment of counsel by the court or the state - By appeal court - [See Courts - Topic 1761 ].

Civil Rights - Topic 4654.1

Right to counsel - Entitlement - Civil cases - [See Courts - Topic 1761 ].

Courts - Topic 1761

Powers - Appointment of counsel - General - Mahjoub was the subject of ministerial security certificate proceedings - He sought a permanent stay of proceedings based on abuse of process after certain of his confidential materials became commingled with those of the Ministers - The motions judge found that there was an abuse of process, but refused a permanent stay, instead ordering that the Minister's litigation team be permanently removed from the file - Mahjoub appealed and sought court-ordered state funding for legal representation for the appeal - The Federal Court of Appeal, per Stratas, J.A., reviewed the applicable principles and refused Mahjoub's request for state funding - Mahjoub failed to demonstrate that there was no other way in which he could obtain legal representation - The evidence fell well short of establishing that court-ordered state funding was necessary as a last resort.

Cases Noticed:

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 11].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 11].

R. v. Rain (M.M.) (1998), 223 A.R. 359; 183 W.A.C. 359; 1998 ABCA 315, refd to. [para. 16].

R. v. Malik (R.S.), [2003] B.C.T.C. 1439; 111 C.R.R.(2d) 40; 2003 BCSC 1439, refd to. [para. 16].

R. v. Dew (E.J.) (2009), 245 Man.R.(2d) 211; 466 W.A.C. 211; 2009 MBCA 101, refd to. [para. 16].

R. v. Rushlow (W.) (2009), 250 O.A.C. 75; 2009 ONCA 461, refd to. [para. 16].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 17].

Canada (Minister of Public Safety and Emergency Preparedness) v. Muse, [2005] F.T.R. Uned. A96; 2005 FC 1380, refd to. [para. 20].

A.B. v. Canada (Minister of Citizenship and Immigration) et al. (2001), 269 N.R. 381 (F.C.A.), refd to. [para. 21].

Canada (Attorney General) v. Purcell (1995), 192 N.R. 148 (F.C.A.), refd to. [para. 23].

Little Sisters Book and Art Emporium v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 26].

R. v. Caron (G.) (2011), 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [para. 26].

Canada (Attorney General) v. Telbani (2012), 441 N.R. 173; 2012 FCA 188, refd to. [para. 27].

Metrolinx v. Canadian Transportation Agency, [2010] N.R. Uned. 50; 2010 FCA 45, refd to. [para. 27].

AstraZeneca Canada Inc. et al. v. Mylan Pharmaceuticals ULC et al. (2011), 426 N.R. 167; 2011 FCA 312, refd to. [para. 35].

Counsel:

Johanne Doyon and Paul Slansky, for the appellant;

Christopher Bundy and Sarah Egan, for the respondents.

Solicitors of Record:

Doyon & Associes Inc., Montreal, Quebec, for the appellant;

Slansky Law Professional Corp., Toronto, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents.

This motion was dealt with in writing without the appearance of the parties by Stratas, J.A., of the Federal Court of Appeal, who delivered the following decision, at Otawa, Ontario, on November 15, 2012.