Sylla v. Canada (Attorney General), 2005 FC 905

                                                                                                                                  Date: 20050628

                                                                                                                               Docket: T-973-04

Citation: 2005 FC 905

Ottawa, Ontario, the 28^th day of June, 2005

Present:          The Honourable Mr. Justice François Lemieux

BETWEEN:

MAMADOU SYLLA

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]        Mamadou Sylla is representing himself and is currently an inmate in Archambault federal penitentiary; he appeals under section 51 of the Federal Court Rules, 1998 (the Rules) from the order of Prothonotary Richard Morneau dated January 22, 2005 dismissing his application for judicial review based on delay.

[2]        I agree with the submission of the Attorney General of Canada (the Attorney General): since the prothonotary’s decision bears on a question that is decisive to the outcome of the case, this Court is sitting on an appeal de novo, that is, it hears the case anew (see Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 (C.A.)).

FACTS

[3]        Mamadou Sylla is a citizen of Mali, born January 1, 1968; he is Muslim.

[4]        Admitted to Canada as a visitor on April 27, 1991, and granted Convention refugee status on August 19, 1991, he filed an application for permanent residence in Canada on October 9, 1991.

[5]        While his application for permanent residence was under examination, he did not request any extension of his visitor’s status and obtained a number of work permits that conferred no status on him.

[6]        As a result of numerous criminal convictions, his application for permanent residence in Canada was denied on January 19, 1995.

[7]        On January 5, 2001, a deportation order was issued against him and an arrest warrant was issued on February 14, 2001 but could not be enforced because Mr. Sylla was incarcerated.

[8]        Between May 22, 2002 and August 27, 2003, Mr. Sylla filed with the Canadian Human Rights Commission (the Commission) five complaints alleging discrimination based on his race (black) or his religion (Islamic) against the Correctional Service of Canada (the Service) and another complaint specifically directed against one of its officers.

[9]        On March 29, 2004, following an investigation and disclosure to Mr. Sylla, the Commission accepted the following recommendation of its investigator Michel Bibeau, dated February 4, 2004, for each of his complaints:

[translation] It is recommended, pursuant to paragraph 41(1)(c) of the Canadian Human Rights Act, that the Commission not deal with the complaint because the complainant does not meet the requirements of section 40(5) in that he was not lawfully in Canada at the time of the incidents alleged in the complaint.

[10]      In support of this recommendation, Mr. Bibeau states in each of his investigations reports filed with the Commission on each complaint:

[translation] In the course of the mediation on this file and on the other files of the complainant, the mis-en-cause advised the Commission that, in its view, the complainant did not have legal status in Canada because he has been subject to a deportation order since January 5, 2001. This ended the mediation process and we have formally asked the Minister of Immigration to rule on the complainant’s legal status in Canada.

[11]      In the Court file there is a letter dated October 28, 2003, sent by the Secretary General of the Commission to the Minister of Citizenship and Immigration, referring to subsections 40(5) and (6) of the Canadian Human Rights Act, which read as follows:

[12]      The reply by the Honourable Denis Coderre, Minister of Citizenship and Immigration, dated December 11, 2003, is also in the Court file. The Minister confirms that, as a result of numerous criminal convictions, Mr. Sylla’s application for permanent residence was denied on January 12, 1995. He also states that, on January 5, 2001, a deportation order was issued against him and that an arrest warrant was issued on February 14, 2001. He adds:

[translation]

Since Mr. Sylla was incarcerated, the arrest warrant could not be enforced. It will be when he is released and we will then be able to commence the process for his removal from Canada.

In closing, and to answer your request, I can confirm to you that Mr. Sylla had no legal status in Canada in December 2002. [Emphasis added]

[13]      In all of Mr. Bibeau’s investigation reports, the investigator relates the facts set out by Minister Coderre and concludes:

[translation] In closing, he confirms that Mr. Sylla had no legal status in Canada in December 2002 at the time of the first incidents pertaining to his initial complaint to the Commission.

[14]      Following the disclosure of the investigation reports to Mr. Sylla, Mr. Bibeau set down his comments conveyed by telephone on February 16, 2004. Mr. Sylla told him [translation] “I do not agree with the decisions made, according to which I have no legal status in Canada.”

[15]      On May 18, 2004, the applicant filed an application for judicial review of the Commission’s decisions. He stated:

[translation] The Canadian Human Rights Commission tribunal erred in finding that I was not legally in Canada at the time of the alleged incidents when I had been recognized as a political refugee since August 13, 1991, under section 69.1(9) of the Immigration Act represented by the lawyer Denis Girard and the decision was recorded by the registrar Christine Lavoie.

[16]      On January 7, 2005, the Chief Justice of this Court issued a notice of status review (the notice).

[17]      After having reviewed the submissions of Mr. Sylla and the mis-en-cause, the Correctional Service of Canada, Prothonotary Morneau issued an order dated February 22, 2005, which reads as follows:

[translation]

CONSIDERING the notice of status review issued by this Court on January 7, 2005 and the written representations of the applicant, dated January 17, 2005, in reply to that notice;

CONSIDERING, however, the written representations submitted by the respondent, dated February 3, 2005, and the principles laid down by this Court in Baroud v. Canada (1998), 160 F.T.R. 91;

IT IS HEREBY ORDERED, pursuant to paragraph 382(2)(a) of the Federal Court Rules, that the application for judicial review, filed by the applicant on May 18, 2004, be dismissed for delay.

[18]      In his written submissions, in reply to the notice, Mr. Sylla advised this Court:

(1)        that he has no resources;

(2)        that he can neither read nor write;

(3)        that it was his psychologist and the penitentiary chaplain who, in order to assist him, drafted the notice of judicial review, but that they failed to follow up on it after meeting with their employers;

(4)        the written submissions in reply to the notice were drafted by another inmate; and

(5)        he definitely wants to continue these proceedings, for which he continues to seek an attorney, albeit without success.

[19]      On March 3, 2005, Mr. Sylla filed an appeal from the decision of Prothonotary Morneau. He seeks:

(1)        an order to bring the inmate before the Court under rule 45 of the Rules;

(2)        an order under rule 311(1) to get the registrar to prepare the applicant’s record; and

(3)        an order under rule 384 to have the proceeding managed as a specially managed proceeding.

[20]      Pursuant to the direction of Prothonotary Tabib, dated March 16, 2005, I heard the appeal by way of a conference call on May 11, 2005. I declined to render the order sought by Mr. Sylla under rule 45, as I was satisfied that he was quite capable of making his submissions by conference call, after I had consulted the following cases: Wedow v. Canada (Correctional Service), 2001 FCTD 350; Poulin v. Canada (Attorney General), 2001 FCTD 1219; McDonald v. Canada, 2002 FCTD 303; and Migneault v. Charbonneau, 2002 FCTD 293.

[21]      Mr. Sylla’s appeal must be dismissed on the ground that his application for judicial review of the Commission’s decisions concerning his complaints has no likelihood of success.

[22]      Mr. Justice Gibson recently dealt with an identical situation in Forrest v. Canada (Attorney General), [2004] FC 491.

[23]      In Forrest, supra, an inmate claimed to have been discriminated against by being treated unfavourably and differently in the provision of services by the Correctional Service of Canada. Mr. Forrest’s complaint was dismissed by the Commission after consultation with the Department of Citizenship and Immigration, which told the Commission that Mr. Forrest was not lawfully in Canada at the time of the alleged acts or omissions. Mr. Forrest appealed from the Commission’s decision to this Court by an application for judicial review. Gibson J. of this Court dismissed the application on April 1, 2004.

[24]      The essence of Gibson J.’s decision is at paragraph 23, which reads as follows:

¶23            I conclude that the foregoing advice, particularly that contained in the quoted paragraph 8 is correct. As earlier noted, the Minister of Citizenship and Immigration provided the Minister with “status” advice, that being that since the Applicant is neither a Canadian citizen nor a permanent resident of Canada, he has no “status” in Canada. Further, it was not in dispute before the Court that, at all relevant times, the Applicant had no “visitor” status in Canada if, indeed, a visitor’s visa confers “status” in an immigration sense. Given the Minister’s “status” advice, by virtue of subsection 40(6) of the Canadian Human Rights Act, the Commission had no authority to further examine the question of whether or not the Applicant was “lawfully present in Canada” since the question of status was not resolved in favour of the Applicant. In effect, the question of lawful presence in Canada became irrelevant and the Minister’s gratuitous advice in that regard was similarly irrelevant.

[25]      Mr. Sylla’s immigration file is complex and requires, on an urgent basis, that he be represented by an attorney who is competent in the field. I encourage the Quebec bar, Legal Aid or other competent authority to come to his assistance.

ORDER

THIS COURT ORDERS that Mr. Sylla’s appeal be dismissed without costs.

                     “François Lemieux”

                                Judge

Certified true translation

François Brunet, LLB, BCL

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           T-973-04

STYLE:                                               MAMADOU SYLLA v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     Ottawa, Ontario

DATE OF HEARING:                       May 11, 2005

REASONS FOR ORDER:               Lemieux J.

DATED:                                              June 28, 2005

APPEARANCES:

Mamadou Sylla                                                                        ON HIS OWN BEHALF

Paul Deschênes                                                                        FOR THE RESPONDENT

Dominique Guimond

SOLICITORS OF RECORD:

Mamadou Sylla                                                                        ON HIS OWN BEHALF

Archambault Institution

450-478-7655

John H. Sims                                                                            FOR THE RESPONDENT

Deputy Attorney General of Canada