COURT OF APPEAL FOR ONTARIO

DATE: 20040519

DOCKET: C41054

RE: ERNST ZUNDEL (Appellant) – and – HER MAJESTY THE QUEEN (Respondent)

BEFORE: CHARRON, ROSENBERG and GILLESE JJ.A.

COUNSEL: Peter Lindsay and Chi-Kun Shi for the appellant

David MacIntosh, Pamela Larmondin, Toby Hoffmann and Murray Rodych for the respondent

HEARD: May 10, 2004

On appeal from the order of Senior Justice Mary Lou Benotto of the Superior Court of Justice dated November 25, 2003.

E N D O R S E M E N T

[1] The appellant appeals from the judgment of Senior Justice Benotto staying proceedings on his application for a writ of habeas corpus ad subjiciendum with certiorari in aid. At the conclusion of oral argument we indicated to the parties that the appeal was dismissed with reasons to follow.

[2] The appellant, a permanent resident of Canada, is presently the subject of a hearing before Blais J. of the Federal Court of Canada reviewing a certificate issued under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, declaring him to be inadmissible on grounds of security. The appellant was arrested on May 1, 2003 after he was deported to Canada from the United States. He has remained in custody since that time. Blais J. has also conducted a review of the appellant’s detention. On January 21, 2004, he found that the appellant’s detention should be continued because the appellant is a danger to national security. The hearing to determine whether the certificate is reasonable is still on going.

[3] If Blais J. should uphold the security certificate, the appellant is subject to removal from Canada. There is no appeal from that decision. It appears that the appellant will be deported to Germany where he faces prosecution.

[4] The appellant claims that the provisions of the Immigration and Refugee Protection Act that govern the procedure at the certificate review hearing and the detention review hearing are unconstitutional. He also claims that Blais J. was in violation of the statute because of the delay in completing the detention review.

[5] It was conceded before the application judge that the Superior Court of Justice and the Federal Court of Canada have concurrent jurisdiction to deal with the constitutional issues. Only the Superior Court of Justice can deal with the habeas corpus application. The application judge found that the respondent had shown that the available review process in the Federal Court is not inappropriate or less advantageous than the habeas corpus jurisdiction of the Superior Court of Justice and in view of the expertise and experience in immigration and security matters in the Federal Court, that court was the appropriate forum.

[6] The Immigration and Refugee Protection Act contains a comprehensive scheme to review the validity of security certificates. The Associate Chief Justice or a designated judge of the Federal Court is given sole jurisdiction to deal with all matters concerning the reasonableness of the certificate. This includes jurisdiction over confidential or sensitive information. The process mandated by statute involves issues of immigration and national security for which the Federal Court has particular expertise.

[7] As this court held in Re Peiroo and Minister of Employment and Immigration (1989), 1989 184 (ON CA), 69 O.R. (2d) 253 at 257 [leave to appeal to S.C.C. dismissed, 62 D.L.R. (4th) viii)], “habeas corpus is an extraordinary remedy and, generally speaking, does not lie where there is an alternative remedy available”. In the absence of a showing that the available alternative process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction, the Superior Court should decline jurisdiction. It seems to us that this is particularly the case where the process in the Federal Court is on-going and there is a risk of conflicting results.

[8] The appellant puts his argument for the Superior Court of Justice assuming jurisdiction on the basis that there is no court that can provide him a remedy within a reasonable time to vindicate his constitutional claims. He submits that established jurisprudence in the Federal Court of Canada establishes that the designated judge has no jurisdiction to consider his constitutional arguments, a position also taken by the respondent in this court and before the Federal Court. He also submits that the alternative procedure of an action in the Federal Court could take up to five years to complete and during that time he would remain in custody, possibly in solitary confinement, as he is at this time.

[9] With respect to the jurisdiction of the designated judge, that issue is presently an open one. While the case law under the former Act established that the designated judge has no jurisdiction to consider constitutional issues, recently in Re Charkaoui, 2003 FC 1419, 2003 F.C. 1419, Nöel J. held that under the present Act, the designated judge does have jurisdiction.

[10] In this case, the appellant filed a Notice of Constitutional Question with the Federal Court in May 2003, but he subsequently withdrew that Notice. He has never brought a motion before Blais J. to attempt to raise the constitutional issues. In our view, the comments made by Blais J. during the hearing do not establish that he would refuse to entertain such a motion, should it be brought.

[11] More importantly, in our view, it has not been shown that an action in the Federal Court would be less advantageous. The appellant has provided statistics to show the average time taken for an action to be heard in the Federal Court. However, he has not shown that those statistics have any relevance to his case. He has not brought an action in the Federal Court and has not shown that the Federal Court would not expedite his case given the fact that he remains in custody in solitary confinement.

[12] In Reza v. Canada, 1994 91 (SCC), [1994] 2 S.C.R. 394 at 403 the Court approved of a portion of the reasons of Abella J.A. which was summarized as follows:

In her view there was no obligation on the part of the Ontario Court (General Division) to hear every case presented for adjudication in which there is a constitutional issue raised. She held that the discretion to decline to hear such a case surely exists when not only does the Federal Court have concurrent jurisdiction to deal with the matter, it also has expertise and experience in immigration law, administrative law and Federal Court procedure, the core issues of the respondent's application. She also found it significant that the Federal Court has an exclusive mandate over immigration matters and found the principles from Peiroo v. Canada (Minister of Employment and Immigration) (1989), 1989 184 (ON CA), 69 O.R. (2d) 253 (dealing with habeas corpus), were applicable. Abella J.A. noted that the failure to decline to exercise jurisdiction would raise concerns over forum-shopping, inconsistency and multiplicity of proceedings.

[13] In our view, those principles apply in this case. In light of this conclusion, it is unnecessary to consider the application judge’s obiter statement that in any event she would have dismissed the application on its merits. Accordingly, the appeal is dismissed.

Signed: “Louise Charron J.A.”

“Marc Rosenberg J.A.”

“Eileen E. Gillese J.A.”