Date: 20100218
Docket: IMM-3367-09
Citation: 2010 FC 173
Ottawa, Ontario, February 18, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MAXIMIN SEGASAYO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr.
Segasayo was Rwanda’s Ambassador to Canada from 1991 to 1995. After
the new government in Rwanda recalled him, he and
his family applied for and were given refugee status by the Immigration and
Refugee Board (IRB) in 1996. He submitted that as a member of the Hutu Intelligentsia
and as Ambassador to Canada appointed by the former
government he feared persecution and reprisal by the new Tutsi government. He
is now subject to a deportation order because he has been found inadmissible to
Canada for violating human or
international rights. This is a judicial review of that decision.
[2]
In
1998, the Minister of Citizenship and Immigration designated the two Rwandan
governments in power from October 1990 to April 1994 and from April 1994 to
July 1994 as regimes which engaged in crimes against humanity and genocide.
[3]
That
designation was made when the Immigration Act, R.S.C. 1985, c. I-2, was
in force. However there is no material difference between the law then and the
law as set out now in section 35(1)(b) and section 35(2) of the Immigration
and Refugee Protection Act (IRPA) and section 16 of the Immigration and
Refugee Protection Regulations (Regulations).
[4]
The
relevant provisions of section 35 of IRPA read:
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35. (1) A permanent resident or
a foreign national is inadmissible on grounds of violating human or
international rights for
[…]
(b) being a
prescribed senior official in the service of a government that, in the
opinion of the Minister, engages or has engaged in terrorism, systematic or
gross human rights violations, or genocide, a war crime or a crime against
humanity within the meaning of subsections 6(3) to (5) of the Crimes
Against Humanity and War Crimes Act; or
[…]
(2) Paragraphs (1)(b)
and (c)
do not apply in the case of a permanent resident or a foreign national who
satisfies the Minister that their presence in Canada would not be
detrimental to the national interest.
|
35. (1)
Emportent interdiction de territoire pour atteinte aux droits humains ou
internationaux les faits suivants :
[…]
b)
occuper un poste de rang supérieur — au sens du règlement — au sein d’un
gouvernement qui, de l’avis du ministre, se livre ou s’est livré au
terrorisme, à des violations graves ou répétées des droits de la personne ou
commet ou a commis un génocide, un crime contre l’humanité ou un crime de
guerre au sens des paragraphes 6(3) à (5) de la Loi sur les crimes contre
l’humanité et les crimes de guerre;
[…]
(2) Les faits visés
aux alinéas (1)b)
et c)
n’emportent pas interdiction de territoire pour le résident permanent ou
l’étranger qui convainc le ministre que sa présence au Canada ne serait
nullement préjudiciable à l’intérêt national.
|
[5]
Section
16 of the Regulations, which mirrors section 19(1.1)(b) of the former Immigration
Act, reads:
|
16. For the purposes of paragraph 35(1)(b)
of the Act, a prescribed senior official in the service of a government is a
person who, by virtue of the position they hold or held, is or was able to
exert significant influence on the exercise of government power or is or was
able to benefit from their position, and includes
(a) heads of state
or government;
(b) members of the
cabinet or governing council;
(c) senior advisors
to persons described in paragraph (a) or (b);
(d) senior members
of the public service;
(e) senior members
of the military and of the intelligence and internal security services;
(f) ambassadors
and senior diplomatic officials; and
(g) members of the
judiciary.
[Emphasis added.]
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16. Pour l’application de
l’alinéa 35(1)b) de la Loi, occupent un poste de rang supérieur au
sein d’une administration les personnes qui, du fait de leurs actuelles ou
anciennes fonctions, sont ou étaient en mesure d’influencer sensiblement
l’exercice du pouvoir par leur gouvernement ou en tirent ou auraient pu en
tirer certains avantages, notamment :
a)
le chef d’État ou le chef du gouvernement;
b)
les membres du cabinet ou du conseil exécutif;
c)
les principaux conseillers des personnes visées aux alinéas a) et b);
d)
les hauts fonctionnaires;
e)
les responsables des forces armées et des services de renseignement ou de
sécurité intérieure;
f)
les ambassadeurs et les membres du service diplomatique de haut rang;
g)
les juges.
[Je souligne.]
|
[6]
Mr.
Segasayo sought a Ministerial Exemption under what is now section 35(2) of IRPA
on the basis that he was not complicit in the crimes committed during the
Rwandan genocide and that his permanent residence in Canada would not be
detrimental to the national interest. The Minister refused to grant that
exemption. The judicial review thereof was dismissed by Mr. Justice Blais, as
he then was, in Segasayo v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FC 585, 66 Imm. L.R. (3d) 111. Currently before the
Court is a review of his deportation order, as the Immigration Division of the
IRB determined that Mr. Segasayo was a person described in section 35(1)(a) of
IRPA.
[7]
The
Member was of the view that the deeming provision in section 16 of the Regulations
created an irrebutable presumption that an ambassador in the service of a
government on the Minister’s list was inadmissible on the grounds of violating
human or international rights. In other words, once it is shown that Mr.
Segasayo was the ambassador of a government designated by the Minister (facts
that Mr. Segasayo has never disputed), then he is inadmissible and has no
defence based on lack of complicity in crimes against humanity or human rights
violations.
[8]
The
member also dismissed the argument that the provisions in question were
unconstitutional as violating section 7 of the Canadian Charter of
Rights and Freedoms. He was of the view that the issue before him was
whether or not Mr. Segasayo
was inadmissible to Canada. His right to life,
liberty and security of his person were not in issue because there remained other
avenues open to him to avoid a return to Rwanda. Consequently, a Charter argument was
premature.
ISSUES
[9]
In
this judicial review Mr. Segasayo
maintains that the leading case on what is now section 35 of IRPA, Canada (Minister of
Citizenship and Immigration) v. Adam, [2001] 2 F.C. 337, 196 D.L.R (4th)
497, 11 Imm. L.R. (3d) 296 (C.A.),
was wrongly decided. The correct interpretation of the law is to be found in
the dissenting reasons of Mr. Justice Isaac.
[10]
Once
that premise is established, the rules of natural justice were violated because
he had no opportunity to present his case that, despite occupying the position
of ambassador, he was not in any way complicit in crimes against humanity.
[11]
In
the alternative, if the courts have, to date, correctly interpreted section 35
of IRPA, as well as section 16 of the Regulations, then those provisions
are unconstitutional as they violate section 7 of the Charter. It is
illusory to suggest that it is premature to raise the Charter argument
at this stage, before other avenues open to him in an effort to remain to Canada are
exhausted.
ANALYSIS
[12]
As
the issues raised are questions of law and of natural justice, I owe no
deference to the decision maker below: Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190; Canadian Union of Public Employees (C.U.P.E.) v.
Ontario (Minister of
Labour),
2003 SCC 29, [2003] 1 S.C.R. 539.
[13]
The
Adam case, above, is somewhat peculiar. Ms. Adam attempted to sponsor
her husband who had been a cabinet minister in the Somalian Government of Siad
Barre. As such, he fell within section 19(1.1)(b) of the former Act
which is now found in section 16 of the Regulations.
[14]
In
speaking for the majority, Mr. Justice Stone, with whom Mr. Justice Evans
concurred, held that the presumption in the Act was not rebuttable. In strong
dissenting reasons, Mr. Justice Isaac held that that interpretation was
inconsistent with the fairness provisions of the Charter and contrary to
the stated purpose and objectives of the Immigration Act. He was of the
view, and he took as an instance the specific case of an ambassador, that a
person should have the opportunity to show that he or she did not exert significant
influence on the exercise of government power. It was wrong to automatically bar
such persons simply because their occupation was listed.
[15]
It
should also be noted that the unconstitutionality of that section of the Immigration
Act had not been squarely put in issue, and that the appellant was the
Minister. No one appeared for the Adams.
[16]
During
argument, I inquired how the Member below and I could choose to follow the
opinion of Mr. Justice Isaac rather than that of the majority of the Federal Court
of Appeal. The principle of stare decisis applies. Me Beauchemin, on
behalf of Mr. Segasayo, was somewhat muted as perhaps he is saving that point
for the Court of Appeal. He submitted that in any event Adam was
distinguishable as in that case, and in all the others cited by the Minister,
the individuals in question had not been granted refugee status. This
distinction cannot be supported. Section 44 and following of IRPA mean that a
successful refugee claimant, like any other foreign national or permanent
resident, may be declared inadmissible at any time, even if not inadmissible
when refugee status was first acquired.
[17]
Mr.
Segasayo’s complaint is that he has not had an opportunity to make his case
that he was in no way complicit in the atrocities of the Rwandan governments,
and had no influence over them. Even criminals such as Mr. Chiarelli had an
opportunity before a court of competent jurisdiction to defend themselves
before being deported (Canada
(M.E.I.) v. Chiarelli, [1992] 1 S.C.R. 711).
[18]
However,
I cannot see the merit of this argument which goes to the heart of procedural
fairness. Under section 103(1)(a) of IRPA, proceedings before the Refugee
Protection Division are suspended when an officer enforcing s. 44(1) of IRPA
decides to refer a claimant’s case to the Immigration Division to determine
whether a claimant is inadmissible. It follows that had ambassadors of the
designated Rwandan governments become inadmissible before Mr. Segasayo’s
refugee claim was decided, processing of his refugee claim would have been
suspended while he underwent the same type of inadmissibility hearing as the
one at issue here. If Adam, above, was followed, that inadmissibility
hearing would inevitably come to the conclusion that Mr. Segasayo was
inadmissible. His refugee claim would then be terminated pursuant to section 104(2)(a)
of IRPA. He would never have had a chance to plead his case to the RPD.
[19]
Adam, above, is binding on
this Court and has been followed in cases such as Hussein c. Canada (Ministre
de la Citoyenneté et de l'Immigration), 2009 CF 759, and Lutfi v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1391, 52 Imm. L.R. (3d)
99.
[20]
Whether
another panel of the Federal Court of Appeal might have or could come to a
different conclusion is not for me to say. In Kremikovtzi Trade v. Phoenix
Bulk Carriers Ltd., 2006 FCA 1, [2006] 3 F.C.R. 475, the Court of Appeal was
called upon to interpret a provision of section 43 of the Federal Courts Act.
The Panel was of the view that if the matter had not already been decided it
would have come to a conclusion different from a previous panel’s decision in Paramount
Enterprises International Inc. v. An Xin Jiang (The), [2001] 2 F.C. 551
(C.A.). The Court stated it would not overrule one of its prior decisions
unless it was manifestly wrong. Reliance was placed on Miller v. Canada
(Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149. However the matter
went to the Supreme Court of Canada as Phoenix Bulk Carriers Ltd. v.
Kremikovtzi Trade, 2007 SCC 13, [2007] 1 S.C.R. 588. The Supreme Court
agreed with the legal analysis in Phoenix Bulk Carriers and refused to
follow Paramount Enterprises: “whatever the merits of the practice” of
the Federal Court of Appeal not to reverse itself, the Phoenix Bulk Carriers
Ltd. Panel’s interpretation of the law was correct.
IS SECTION 7 OF THE
CHARTER ENGAGED?
[21]
Section
7 reads:
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7. Everyone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.
|
7. Chacun a droit à la vie, à
la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à
ce droit qu'en conformité avec les principes de justice fondamentale.
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Having reached this stage in the analysis,
the constitutionality of section 35(1)(b) must be considered. Mr. Segasayo
relies strongly on the decisions of the Supreme Court in Singh v. Canada
(Minister of Employment and Immigration), [1985] 1 S.C.R. 177 and Charkaoui
v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
[22]
Section
57 of the Federal Courts Act provides that:
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57. (1) If the constitutional validity, applicability or
operability of an Act of Parliament or of the legislature of a province, or
of regulations made under such an Act, is in question before the Federal
Court of Appeal or the Federal Court or a federal board, commission or other
tribunal, other than a service tribunal within the meaning of the National
Defence Act, the Act or regulation shall not be judged to be invalid,
inapplicable or inoperable unless notice has been served on the Attorney
General of Canada and the attorney general of each province in accordance
with subsection (2).
(2) The notice must be served at least 10 days before the day on
which the constitutional question is to be argued, unless the Federal Court
of Appeal or the Federal Court or the federal board, commission or other
tribunal, as the case may be, orders otherwise.
(3) The Attorney General of Canada and the attorney general of
each province are entitled to notice of any appeal or application for
judicial review made in respect of the constitutional question.
(4) The Attorney General of Canada and the attorney general of
each province are entitled to adduce evidence and make submissions to the
Federal Court of Appeal or the Federal Court or the federal board, commission
or other tribunal, as the case may be, in respect of the constitutional
question.
(5)
If the Attorney General of Canada or the attorney general of a province makes
submissions, that attorney general is deemed to be a party to the proceedings
for the purpose of any appeal in respect of the constitutional question.
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57. (1) Les lois fédérales ou provinciales ou leurs textes
d’application, dont la validité, l’applicabilité ou l’effet, sur le plan
constitutionnel, est en cause devant la Cour d’appel fédérale ou la Cour fédérale
ou un office fédéral, sauf s’il s’agit d’un tribunal militaire au sens de la Loi
sur la défense nationale, ne peuvent être déclarés invalides,
inapplicables ou sans effet, à moins que le procureur général du Canada et
ceux des provinces n’aient été avisés conformément au paragraphe (2).
(2) L’avis est, sauf ordonnance contraire de la Cour
d’appel fédérale ou de la Cour fédérale ou de l’office fédéral en cause,
signifié au moins dix jours avant la date à laquelle la question
constitutionnelle qui en fait l’objet doit être débattue.
(3) Les avis d’appel et de demande de contrôle
judiciaire portant sur une question constitutionnelle sont à signifier au
procureur général du Canada et à ceux des provinces.
(4) Le procureur général à qui un avis visé aux
paragraphes (1) ou (3) est signifié peut présenter une preuve et des
observations à la Cour d’appel fédérale ou à la Cour fédérale et à l’office
fédéral en cause, à l’égard de la question constitutionnelle en litige.
(5) Le procureur général qui présente
des observations est réputé partie à l’instance aux fins d’un appel portant
sur la question constitutionnelle.
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[23]
Such
a notice was given prior to the hearing at the Immigration and Refugee Board.
Four provinces or territories responded. All four said they would not
participate. However the Attorneys General of Ontario and of Newfoundland and
Labrador reserved the right to receive further notices if the matter went to
appeal or judicial review.
[24]
The
Member decided that the constitutionality argument was premature, as what was
in issue was not section 7 of the Charter, but rather whether Mr. Segasayo was inadmissible.
He would have an opportunity to make his constitutional case in later
proceedings.
[25]
In
this judicial review of that decision, the Attorneys General were entitled to
notice in accordance with section 57(3) of the Federal Courts Act. No
such notice was given.
[26]
This
defect could possibly have been cured by adjourning the hearing so as to give
Mr. Segasayo the opportunity to serve a notice of constitutional question, and
to give the Attorneys General a chance to participate if they so wished.
However, like the Member, I am of the view that the constitutional question
need not be answered as it is premature. Mr. Segasayo is not in detention and
has other avenues open to him before he would be removed. At those times he would have his
opportunity to make his Charter case.
[27]
This
reasoning follows that of the Federal Court of Appeal in Poshteh v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487
on a certified question with respect to non-admissibility of a person who was
considered a member of a terrorist organization in accordance with section 34(1)(f)
of IRPA. In speaking for the Court of Appeal, Mr. Justice Rothstein, as he then
was, held that section 7 of the Charter was not in issue. He stated at
paragraph 63:
Here, all that is being determined is whether
Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a
terrorist organization. The authorities are to the effect that a finding of
inadmissibility does not engage an individual's section 7 Charter rights. (See,
for example, Barrera v. Canada (MCI) (1992), 99 D.L.R. (4th)
264 (F.C.A.).) A number of proceedings may yet take place before he reaches the
stage at which his deportation from Canada may occur. For example, Mr. Poshteh
may invoke subsection 34(2) to try to satisfy the Minister that his presence in
Canada is not detrimental to the national interest. Therefore, fundamental
justice in section 7 of the Charter is not of application in the determination
to be made under paragraph 34(1)(f) of the Act.
See also Arica v. Canada (Minister of
Employment and Immigration) (1995), 182 N.R. 392 (F.C.A.).
[28]
Mr.
Segasayo’s position, however, is that the applicability of the Charter is
engaged now. He submits that the two prime avenues open for him to remain in
Canada, an application for permanent residence from within the country on
humanitarian and compassionate grounds (H&C) pursuant to section 25 of IRPA,
and a pre-removal risk assessment (PRRA) pursuant to section 112 and following
thereof are illusory.
[29]
With
respect to the H&C application, Mr. Segasayo suggests the result is a
foregone conclusion since the Minister has already taken the position that it
is not in Canada’s national interest that he remain here. However the
considerations which come into issue in section 25 of IRPA are very broad. His
wife and children have been granted permanent resident status, and the Minister
may waive any requirement of the Act, including one supported by a previous
decision taken under section 35(2).
[30]
Turning
to the PRRA, Mr. Segasayo’s rights are admittedly restricted pursuant to section
112(3)(a) of IRPA as he has been determined to be inadmissible on the grounds
of violating human or international rights. As such, by virtue of section
114(2), if the Minister forms the opinion that the circumstances surrounding a
stay of a removal order have changed, he may re-examine the case and cancel the
stay. Furthermore, the principle of “non-refoulement” referred to in section
115, i.e., that Canada will not remove a person to a country where he would be
at risk of persecution or at risk of torture or cruel and unusual treatment or
punishment does not apply to a person who is inadmissible on the grounds of
violating human or international rights if the Minister is of the view the
person should not be allowed to remain here “on the basis of the nature and
severity of the acts committed or of danger to the security of Canada.”
[31]
It
seems to me that if the matter gets to that stage, and if Mr. Segasayo would
still be at risk of persecution in Rwanda, he would then have the opportunity
of making his case as to the nature and severity of the acts, if any, he
committed or as to the danger he poses to the security of Canada.
[32]
For
these reasons the application for judicial review shall be dismissed.
CERTIFIED QUESTION
[33]
My
decision cannot be appealed to the Court of Appeal unless, in accordance with section
74(d) of IRPA, I certify and state a serious question of general importance.
[34]
The
issues raised are important, and it cannot be said with certainty that my own
point of view is correct. I am also mindful that Adam was argued in the
Federal Court of Appeal on an ex parte basis.
[35]
I
shall certify the following question based on the one suggested by Mr.
Segasayo:
[TRANSLATION]
Are
s. 35(1) of the Immigration and Refugee Protection Act and s. 16 of the Immigration
and Refugee Protection Regulations in accordance with the principles stated
by the Supreme Court in the Singh
v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 and Charkaoui v.
Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350,
decisions and with s. 7 of
the Canadian Charter of Rights and Freedoms when a person targeted by
those provisions had already obtained refugee or protected person status and
does not have the right to defend him/herself against the allegations made
against him/her under those provisions?
[36]
As
I am of the view my accompanying order determines a question of law of general
public interest or importance, these reasons are issued simultaneously in both
official languages as provided in s. 20 of the Official Languages Act.
ORDER
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
The
following serious question of general importance is certified:
Are s. 35(1) of the Immigration and
Refugee Protection Act and s. 16 of the Immigration and Refugee
Protection Regulations in accordance with the principles stated by the
Supreme Court in the Singh
v. Canada (Minister of Citizenship and Immigration), [1985] 1 S.C.R. 177 and Charkaoui v.
Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350,
decisions and with s. 7 of
the Canadian Charter of Rights and Freedoms when a person targeted by
those provisions had already obtained the refugee or protected person status
and does not have the right to defend him/herself against the allegations made
against him/her under those provisions?
“Sean Harrington"
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