Branigan v. Canada (Minister of Citizenship and Immigration), 2004 FC 245

Date: 20040217

Docket: IMM-782-04

Citation: 2004 FC 245

Vancouver, British Columbia, Tuesday, the 17^th day of February, 2004

Present:           THE HONOURABLE MR. JUSTICE LEMIEUX                        

BETWEEN:

                                                EDWARD PATRICK BRANIGAN

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

                                                       AND IMMIGRATION and

                                        THE SOLICITOR GENERAL OF CANADA

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]         Edward Patrick Branigan (the "applicant") is a U.S. citizen. In September 2003 he drove across the U.S./Canada border south of Vancouver with the stated intention of skiing at Whistler. He was issued a Canadian visitor's visa valid for 6 months.

[2]         He seeks a stay from a deportation order made against him on January 28^th, 2004 by a member of the Immigration Division of the Immigration and Refugee Board (the "tribunal")

after an admissibility hearing conducted over several days pursuant to section 45 of the Immigration and Refugee Protection Act (IRPA).

[3]         The admissibility hearing was triggered by a subsection 44(1) report dated December 11, 2003 and signed by immigration officer Swayze. That report was addressed to the Minister of Citizenship and Immigration (the "Minister") and stated her opinion that there were serious reasons to believe the applicant was inadmissible under subparagraph 36(1)(c) of the Act on grounds of serious criminality "for committing an act outside of Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum time of imprisonment of at least 10 years".

[4]         On December 12^th, 2003 the Minister's delegate referred the report to the Immigration Division pursuant to subsection 44(2) of the IRPA.

[5]         Both the report and the referral were made on forms prescribed by the Minister. The report was signed by Ms. Swayze as an officer. The referral was signed by a person whose signature is not legible but underneath is found the printed words "Minister's delegate".

[6]         Section 44 of the IRPA reads:

A)       Serious Issue

[7]         The applicant raised a number of grounds which his counsel argued showed one or more serious issues.

i. Report and Referral not Authorized

[8]         The applicant argues that the report and referral are invalid because on their face they do not disclose they were issued by persons designated by the Minister or to whom the Minister had delegated authority under section 6 of the IRPA which reads:

[9]         There is no merit to this argument because there is a presumption of validity and the applicant has adduced no evidence to impugn the authority of those persons who issued the documents. I need only cite a few paragraphs of what Justice Létourneau said in Canada (Minister of Human Resources Development) v. Weimer [1998] F.C.J. 809 (C.A.).

¶ 12      The approval of Mrs. Kukat's application for division of earnings was given on an official form issued by the Division of Unadjusted Pensionable Earnings ("Pension Credits") Canada Pension Plan and signed, in a section reserved to office use only, by a M. Ali under a heading called "Authorized Signature". As Walsh J. said in Kightley v. Registrar of Trade Marks et al. [See Note 6 below], "it would certainly require great temerity and irresponsibility on the part of a party signing such a letter purporting to be signed on behalf of a senior officer if he did not have the authority to so act". [emphasis mine]

            __________________________________________________

     Note 6: (1982), 65 C.P.R. (2d) 36, at p. 42 (F.C.T.D.)

                __________________________________________________

¶ 13      The fact is that a person who signs, or purports to sign, for a senior officer in a department benefits from a presumption that he or she has the authority that he or she purports to exercise until such time as the presumption is rebutted [See Note 7 below].

                __________________________________________________

     Note 7: Ali v. Minister of Manpower and Immigration, [1976] 1 F.C. 185, at pp. 188-89 (Fed. C.A.); Molson Companies Ltd. v. John Labatt Ltd. et al., (1984), 1 C.P.R. (3d) 329, at p. 334 (F.C.T.D.)

                __________________________________________________

¶ 14      No evidence whatsoever has been adduced by the Respondent which could cast the slightest doubt that the person who signed was not authorized to sign the approval and which could have, if not rebutted, at least sufficiently undermined the presumption of validity which attaches to the signature of an official document so as to displace the burden and put on governmental officials the obligation to establish the validity of the signature as well as the existence of a proper authority vested in the signatory. Mere unsubstantiated allegations or speculations by the Respondent are not sufficient to displace the presumed authority under subsection 24(2) of the Interpretation Act and the presumption of validity of the signature.

ii. The Delegation and Designation Gap

[10]       The applicant argues a gap or void was created in the flow of designation and delegation of authority on December 12, 2003 when the Canada Border Services Agency (CBSA) was created. I see no merit to this argument. This argument cannot affect the validity of Ms. Swayze's report dated December 11^th, 2003 thus made under the old regime. It is an issue in respect of the Minister's delegate's referral made on December 12^th, 2003.

[11]       The CBSA was created on December 12^th, 2004 by Order in Council P.C. 2003-2059 made under the Financial Administration Act (FAA). The Intelligence and Enforcement Operations Branch of the Department of Citizenship and Immigration was added to the FAA as a department for the purposes of that Act to be known as the CBSA and the Minister of Citizenship and Immigration was designated the appropriate Minister over the new agency.

[12]       By P.C. 2003-2061, pursuant to the Public Service Rearrangement and Transfer of Duties Act (the "Act") the supervision and control of the CBSA was transferred from the Minister to the Solicitor General of Canada, effective December 12, 2003 (the "new Minister").

[13]       Also effective December 12, 2003, pursuant to the Act, the following portions of the public service of Canada were transferred to the CBSA:

(i)        the Vancouver Enforcement Office and the Intelligence Unit, Vancouver

(ii)        those portions of the offices in Canada, other than ports of entry, that deal on a full-time basis with enforcement (removals, detention, investigations, pre-removal risk assessments, hearings, appeals, interventions and war crimes) and intelligence

[14]       On that same day, December 12^th, 2003, the Solicitor General for Canada, pursuant to subsections 6(1) and 6(2) of the IRPA, designated or delegated to specified classes of public servants to act under section 44 of the IRPA. Counsel for the respondents also points to section 3 of the Act which reads:

[15]       On the basis of the above, I see no gap in the chain of authority from the appropriate Minister to her delegate in respect of the referral in this case to the Immigration Division.

[16]       It is true, however, that from the material quoted above I do not know whether the Minister's delegate falls within one of the classes in Column 4 of the designation/delegation made by the new Minister.

[17]       This issue is resolved in two ways. First, the presumption of validity applies. Second, over the objection of the applicant I considered the affidavit of Cindy Comrie. I do so on the authority of the Federal Court of Appeal's decision in Ali v. Minister of Manpower and Immigration [1976] 1 F.C. 185 where at page 188 the Chief Justice stated whether a person had authority (to issue a direction) is a question of fact that, in appropriate cases, can be made the subject of evidence in that Court.

[18]       Cindy Comrie states she is a Hearings Officer and Supervisor of the Investigations Unit of the Vancouver Enforcement Office of the CBSA. The category of a Hearings Officer is one of the classes of persons the new Minister's delegation of December 12^th, 2003 (as it was in the Minister's delegation of July 2003) authorized to make a section 44(2) referral. She also deposed that Andrea Swayze was an Enforcement Officer, a class of persons covered to make a subsection 41(1) report.

(iii) Disguised Extradition

[19]       The applicant raised as a serious issue that section 44 IRPA procedure was unlawful because it was embarked upon for an improper purpose as a substitution for the stricter procedures provided for in the Extradition Act.

[20]       Counsel for the applicant effectively abandoned this issue as a serious issue as he could distinguish this case from the Federal Court of Appeal's decision in Canada (Minister of Citizenship and Immigration v. Legault (1997) 42 Imm. L.R. (2d) 192 and the decision of Justice Rothstein, then a member of the Federal Court, Trial Division, in Halm v. Minister of Employment (1995) 104 F.T.R. 81.

[21]       I believe he was correct in doing so.

[22]       In Halm, supra Justice Rothstein drew a distinction between extradition and deportation. He stated this at paragraph 18:

¶ 18      Initially, I would observe that the argument of counsel for the applicant misses the basic difference between deportation and extradition. Deportation occurs when a state wishes to expel a person. Extradition occurs when a states wishes to retrieve a person, and can only be carried out when a request for extradition has been received. Canada cannot be precluded from taking steps to deport an individual merely because the effect of deportation may be that the individual faces greater sanctions in the country to which he is deported than if he is extradited. Canada has no control over whether a foreign State wishes a person extradited, and the Government of Canada cannot be precluded from acting in the public interest to deport undesirable aliens.

[23]       Justice Rothstein quoted from Chief Justice Cartright's reasons in Moore v. Minister of Manpower and Immigration (1968) 69 D.L.R. (2d) 273 (S.C.C.) as follows:

To decide that the deportation proceedings are a sham or not bona fide it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the appellant. This is the view expressed in the Soblen case, supra, and I agree with it.

[24]       He observed (1) the onus on an applicant to demonstrate bad faith or improper purpose through a disguised extradition was a heavy onus and (2) the fact that there had been communication between Canadian and U.S. authorities did not demonstrate bad faith or improper purpose and relied on Justice Reed's decision in a prior case involving the same parties (1995) 91 F.T.R. 106.

[25]       Justice Rothstein concluded at paragraph 25:

¶ 25       Reed J. rejected these arguments as do I. The fact that the Minister chose the most serious of the applicant's crimes in the United States upon which to base deportation proceedings is not evidence of bad faith or improper purpose. As well, although some officials of the Minister attempted to deport the applicant, it was the intervention of the Minister's counsel that prevented it. The fact that the United States wanted the applicant back or that there were communications between U.S. and Canadian officials is also not evidence of bad faith or improper motive. Nor does the issuance of a conditional request for extradition by the United States indicate that anything improper was done by Canada in taking steps to deport the applicant. Indeed, counsel does not argue that the applicant is not undesirable or that he should not be forced to leave Canada.

[26]       To the extent counsel for the applicant shifted his argument from disguised extradition to one of sufficiency of evidence, he also fails. The tribunal specifically relied on the Legault case, supra, in concluding the evidence before her, namely, a U.S. indictment, documentation from the U.S. Department of Justice confirming through fingerprints the applicant was the same person who was wanted in the United States and the results of items seized pursuant to a search warrant executed at his home in the United States, was sufficient to constitute reasonable grounds to believe he had committed an act in the United States contrary to the U.S. code.

[27]       In Legault, similar evidence was proferred and found sufficient by the Federal Court of Appeal.

iv. Breach of Fairness

[28]       The last serious issue raised by counsel for the applicant is a breach of fairness that he was not allowed to subpoena and cross-examine Ms. Swayze.

[29]       At page 99 of the applicant's record, the tribunal ruled Ms. Swayze had simply made a report which is not evidence unlike what happened in Cheung v. Minister of Employment and Immigration [1981] 2 F.C. 764 (C.A.)

[30]       I am not persuaded the applicant has raised a serious issue here.

B.         Irreparable Harm

[31]       I agree with counsel for the Ministers, the applicant has not shown he would suffer irreparable harm if the stay application is not granted.

[32]       Apart from the fact that he has a month or so left on his visitor's visa, he has no connection to Canada.

[33]       His counsel argued, if he is deported his right to stay in Canada under the time left under his visitor's visa will be lost forever. There is no substance to this argument. Clearly, subsection 45(d) of the IRPA mandated the tribunal to issue a deportation order to a foreign national who had been authorized to enter Canada if satisfied that that foreign national is inadmissible.

[34]       There is also no substance to his argument that his application for leave and judicial review is rendered moot if the stay is not granted. If leave is obtained, the judicial review application may be pursued and the effect of quashing the deportation order means he is able to return to Canada without a Minister's permit if he otherwise is admissible.

[35]       The applicant did not raise as irreparable harm any elements of the U.S. criminal justice system. If he had he would have had to contend with the Federal Court of Appeal's decision in Canada (Minister of Manpower and Immigration) v. Satiacum, [1989] F.C.J. No. 505.

C.        Balance of Convenience

[36]       In the circumstance, the balance of convenience in enforcing the deportation order as soon as practicable favours the Minsters.

                                               ORDER

[37]       This stay application is dismissed.

(Sgd.) "F. Lemieux"

      Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-782-04

STYLE OF CAUSE: Edward Patrick Branigan v

                 The Minister of Citizenship and Immigration et al.

PLACE OF HEARING:                                 Vancouver BC

DATE OF HEARING:                                   February 16^th, 2004

REASONS FOR ORDER AND ORDER: LEMIEUX J.

DATED:                     February 17, 2004

APPEARANCES:

William J. Macintosh                                          FOR APPLICANT

R. Keith Reimer                                                 FOR RESPONDENTS

SOLICITORS OF RECORD:

William Macintosh Associates                                        FOR APPLICANT

Surrey, British Columbia

Morris Rosenberg                                              FOR RESPONDENTS

Deputy Attorney General of Canada