[1] This is an application for an order declaring that it would be a violation of the principles of fundamental justice to deport the applicant back to Jamaica.

[2] The applicant is a citizen of Jamaica. He was admitted to Canada as a permanent resident in 1979 at the age of 14. He has resided in Canada since this time.

[3] The applicant has a number of criminal convictions. The applicant's last criminal conviction was in June 1993.

[4] Since approximately this time, the applicant has been under the care of a psychiatrist and social workers.

[5] The applicant is schizophrenic and suffers from moderate mental retardation. He became mentally ill in 1983 when he was diagnosed as having schizophrenia. He was first arrested in 1984.

[6] His illness is treatable with clozapine.

[7] Michel A. Lapointe, M.D., Director, Overseas Medical Services, International Region, for the respondent stated:

Following your request, I wish to confirm that there is an equivalent of the antipsychotic medication CLOZAPINE prescribed to Mr. Brown, at the Belleview Hospital in Kingston, Jamaica, that is SEROQUEL (Quetiapine Furnarate). . . .

The applicant will be sent to Bellevue Hospital.

[8] The applicant's three brothers were deported to Jamaica. One of his brothers, who was mentally ill, died under violent and suspicious circumstances. Another brother has disappeared in Jamaica. The third brother is being treated in Bellevue Hospital.

[9] The applicant made a humanitarian and compassionate ("H & C") application, which was approved in principle on December 5, 2001. As a result, pursuant to section 233 of the Immigration and Refugee Protection Act, S.C. 2001, c.-27 (the "IRPA") the removal order made against the applicant is stayed until a decision is made to grant, or not grant, permanent resident status. According to counsel for the respondent, if a decision is made not to grant permanent resident status due to the applicant's criminal and medical inadmissibility, there remains the possibility of a recommendation to issue a temporary resident permit to the applicant.

Issue

[10] Should a declaration be issued?

Analysis and Decision

[11] The applicant submits that he is entitled to a declaration that it would be a violation of the principles of fundamental justice to deport him to Jamaica.

[12] The respondent submits that the application for a declaration is premature and in the alternative, if it is not premature, the declaration should not be granted.

[13] The Supreme Court of Canada in [1980] 1 S.C.R. 821">Canada v. Solosky, [1980] 1 S.C.R. 821 at pages 830 - 833 stated:

Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a "real issue" concerning the relative interests of each has been raised and falls to be determined.

The principles which guide the Court in exercising jurisdiction to grant declarations have been stated time and again. In the early case of Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd., [1921] 2 A.C. 438, in which parties to a contract sought assistance in construing it, the Court affirmed that declarations can be granted where real, rather than fictitious or academic, issues are raised. Lorne Dunedin set out this test (at p. 448):

The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it, he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.

In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government, [1958] 1 Q.B. 554 (rev' [1960] A.C. 260, on other grounds), Lord Denning described the declaration in these general terms (p. 571):

. . . if a substantial question exists which one person has a real interest to raise, and the other to oppose, then the court has a discretion to resolve it by a declaration, which it will exercise if there is good reason for so doing.

The jurisdiction of the Court to grant declaratory relief was again stated, in the broadest language, in Pharmaceutical Society of Great Britain v. Dickson, [1970] A.C. 403 (H.L.), a case in which the applicant sought a declaration that a proposed motion of the pharmaceutical society, if passed, would be ultra vires its objects and in unreasonable restraint of trade. In the course of his judgment, Lord Upjohn stated, at p. 433:

A person whose freedom of action is challenged can always come to the court to have his rights and position clarified, subject always, of course, to the right of the court in exercise of its judicial discretion to refuse relief in the circumstances of the case.

In the instant case, Mellstrom v. Garner, [1970] 1 W.L.R. 603, was cited in the Federal Court of Appeal in support of the proposition that Courts will not grant declarations regarding the future. There, a chartered accountant and former partner of the defendant sought a declaration as to the true construction of the agreement by which the partnership had been dissolved. The plaintiff asked whether, having regard to a clause in the agreement, he would be in breach were he to solicit clients or business of the "continuing partners". Karminski, L.J., held that declarations concerning the future ought to be approached with considerable reserve. Since neither the plaintiff nor the defendants had broken the provisions of the clause in question, nor sought to do so, there was no useful purpose to be gained in granting the declaration. The application was dismissed. That is a very different case from the present one.

As Hudson suggests in his article, "Declaratory Judgments in Theoretical Cases:__The Reality of the Dispute" (1977), 3 Dal.L.J. 706:

The declaratory action is discretionary and the two factors which will influence the court in the exercise of its discretion are the utility of the remedy, if granted, and whether, if it is granted, it will settle the questions at issue between the parties.

The first factor is directed to the "reality of the dispute". It is clear that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise. As Hudson stresses, however, one must distinguish, on the one hand, between a declaration that concerns "future" rights and "hypothetical" rights, and, on the other hand, a declaration that may be "immediately available" when it determines the rights of the parties at the time of the decision together with the necessary implications and consequences of these rights, known as future rights. (p. 710)

Here there can be no doubt that there is a real and not a hypothetical, dispute between the parties. The declaration sought is a direct and present challenge to the censorship order of the Director of Millhaven Institute. That order, so long as it continues, from the past through the present and into the future, is in controversy. The fact that a declaration today cannot cure past ills, or may affect future rights, cannot of itself, deprive the remedy of its potential utility in resolving the dispute over the Director's continuing order.

Once one accepts that the dispute is real and that the granting of judgment is discretionary, then the only further issue is whether the declaration is capable of having any practical effect in resolving the issues in the case.

The same general principles are outlined by Lozar Sarna, author of The Law of Declaratory Judgments, ed. (Toronto: Carswell, 1998) at pages 22 to 29.

[14] In the present case, a deportation order was issued against the applicant on September 30, 1997. His removal to Jamaica had been scheduled, but was stayed by an order of this Court until his judicial review application was disposed of. The judicial review application has since been denied.

[15] The applicant, however, filed an application based on H & C grounds on or about August 3, 2001. The applicant received approval in principle of this application on December 5, 2001. By virtue of section 233 of the IRPA, supra, the removal order (deportation order) made against the applicant is stayed until a decision is made to grant, or not grant, permanent resident status. By virtue of this section, the applicant cannot be removed to Jamaica until the H & C application is decided.

[16] There is no doubt that the applicant is entitled to make an application for a declaration, at some point in time, but the real question is whether or not the application is premature. There is a deportation order that has been issued but it is stayed by the operation of law until the applicant's H & C application is decided. I am of the view that the declaration, if granted, would have no practical effect as the applicant may be deported if his H & C application is unsuccessful and in any event, he cannot be deported until the decision is made to grant or not grant permanent resident status. No useful purpose would be accomplished by the granting of a declaration at this time.

[17] It is also speculative at the present time as to whether or not the applicant will be removed to Jamaica.

[18] For the above reasons, the application for a declaration is dismissed.

[19] Because of my findings, I will not deal with the merits of the application.

[20] The parties have one week to submit any proposed serious question of general importance for my consideration for certification and a further week to make submissions as to any proposed question.

(Sgd.) "John A. O'Keefe"

J.F.C.C.

Vancouver, B.C.

March 3, 2003

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-3796-01

STYLE OF CAUSE: LEON BROWN by his litigation guardian

CARMEN BROWN

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: Wednesday, September 11, 2002

REASONS FOR ORDER OF O'KEEFE J.

DATED: Monday, March 3, 2003

APPEARANCES:

Krassina Kostadinov

FOR APPLICANT

Stephen Gold

FOR RESPONDENT

SOLICITORS OF RECORD:

Jackman, Waldman & Associates

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT

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Brown v. Canada (Minister of Citizenship and Immigration), 2003 FCT 269

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2003 FCT 269