Khowaja v. Canada (Citizenship and Immigration), 2024 FC 1749

ORDER

UPON MOTION by the Respondent under Rule 369 of the Federal Courts Rules SOR/98-106 [Federal Courts Rules] for an Order pursuant to Rule 399 of the Federal Courts Rules to vary my Order under s 87 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], dated December 24, 2021, to allow the Respondent to rely on redactions in the redacted CTR previously permitted in this matter, and on additional information that may be filed with the Court (which has not been filed to date), and to schedule an in camera hearing without the presence of counsel for the Applicant (ex parte), in addition to the public hearing of this application for judicial, which motion is opposed by the Applicant;

AND UPON considering Rule 399 of the Federal Courts Rules provides that on motion, the Court may set aside or vary an order “by reason of a matter that arose or was discovered subsequent to the making of the order” (Rule 399(2)(a));

AND UPON noting the background to this matter is set out in my Order of December 24, 2021 (reported at 2021 FC 1473), which among other things concluded, considering relevant jurisprudence, there was no need to appoint a special advocate, and noting the Applicant now repeats his request for the appointment of a special advocate, and noting the Respondent advised they would not rely on the redacted information in its submissions leading to the December 24, 2021 Order;

AND UPON noting the Respondent’s present motion is to allow the Respondent to rely on certain parts of the redacted information in the CTR, notwithstanding its previous position, due to alleged changes in the jurisprudence resulting from the Federal Court of Appeal’s decision in Canada (Public Safety and Emergency Preparedness) v Weldemariam, 2024 FCA 69 [Weldemariam] rendered on April 12, 2024, that is, after this Court’s Order of December 24, 2021. The Respondent also seeks leave to rely on information it has not yet filed with the Court, but, given there is none, I conclude that this is a matter I need not consider at this time;

AND UPON considering the written submissions of both parties, I am satisfied the motion should be granted and therefore the requested Order will be made;

AND UPON noting that while the Respondent has changed its position, it remains the case that the December 24, 2021 Order could not issue without considering both the public and the parties’ interest in the open court principle among other things, such that I am not persuaded the issues are anything but res judicata. The Applicant also submits a change in jurisprudence as allegedly occurs due to Weldemariam is not a “matter that arose or was discovered subsequent to the making of the order” per Rule 399(2)(a), however I am not persuaded. In my respectful opinion nothing in Rule 399(2)(a) imposes such limitation in a case like this. Notably, the Respondent’s motion was obviously and clearly contemplated by the Applicant’s motion to delay the hearing of judicial review and hold it in abeyance pending the Federal Court of Appeal’s ruling in Weldemariam (which went on consent of the Respondent);

THIS COURT ORDERS that:

1. The Respondent’s motion to vary the Court’s Order in this case, dated December 24, 2021, to allow the Respondent to rely on the redacted information filed herein is granted;

2. The Applicant’s cross-request to appoint a special advocate is dismissed;

3. The Trial Coordinator and Registry shall schedule (a) a public hearing of the application for judicial review based on the public record, before me at a convenient date, and (b) a supplementary hearing shortly or immediately thereafter in the Court’s secure facility in the absence of the public, the Applicant, and his counsel (ex parte and in camera) under s 83(1)(c) of IRPA.