Date: 20110714
Docket: IMM-5359-10
IMM-5360-10
IMM-5361-10
IMM-5445-10
IMM-5742-10
Citation: 2011 FC 878
Ottawa, Ontario, July 14, 2011
PRESENT: The Honourable Madam
Justice Snider
Docket: IMM-5359-10
BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B031
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Respondent
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Docket: IMM-5360-10
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AND BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B028
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Respondent
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Docket: IMM-5361-10
AND BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B024
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Respondent
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Docket: IMM-5445-10
AND BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B033
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Respondent
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Docket: IMM-5742-10
AND BETWEEN:
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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B017
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
In these
Reasons for Judgment, I am addressing five applications for judicial review
involving five foreign nationals who arrived in Canada on board the “MV Sun Sea” in August 2010
and three decisions releasing the Respondents from detention. These judicial
review applications are five of seven lead cases representing 61 applications
brought by the Minister of Citizenship and Immigration [the Minister], as
Applicant, regarding decisions made by members of the Immigration and Refugee
Board, Immigration Division [the ID] in which the foreign nationals were
ordered to be released from detention.
[2]
As
discussed below, the determinative issue for all of these applications is
mootness.
[3]
The
decisions under review are as follows:
·
Decision [Decision
#1] and Order [Order #1] dated September 14, 2010, wherein a member [Member #1]
of the ID ordered the release of the Respondents referred to as B031 (Court
File No. IMM-5359-10), B028 (Court File No. IMM-5360-10) and B024 (Court File
No. IMM-5361-10);
·
Decision [Decision
#2] and Order [Order #2] dated September 16, 2010, wherein a member [Member #2]
of the ID ordered the release of the Respondent referred to as B033 (Court File
No. IMM-5445-10); and
·
Decision [Decision
#3] and Order [Order #3] dated October 1, 2010, wherein a member [Member #3] of
the ID ordered the release of the Respondent referred to as B017 (Court File
No. IMM-5742-10).
[4]
The other
two applications, that were part of the seven lead cases, were heard at the
same time. Reasons for Judgment and Judgment, allowing the judicial reviews,
have been rendered in respect of Court File No. IMM-5414-10 and Court File No.
IMM-5415-10 (see: Canada (Minister of Citizenship and
Immigration) v
B046, Canada (Minister of Citizenship and
Immigration) v B047,
2011 FC 877 [referred to as “B046, B047”]).
[5]
Because of
the common elements and disposition for each of these five cases, I have
determined that it is most expedient to deal with all of them together in this
one set of Reasons.
[6]
The “MV
Sun Sea” arrived in Canadian waters on August 13, 2010 with 492 migrants on
board. The offloading and processing the persons on board was, as described by
one member of the ID, “a monumental task”.
[7]
One cannot
ignore the unique context of the Sun
Sea migrants. The persons on board were purported to be Tamils from Sri Lanka. There was a serious
possibility that some of the migrants had ties to the Liberation Tigers of Tamil
Eelam [the LTTE], a group designated as a terrorist organization in Canada; such persons would be
inadmissible to Canada. While many of the migrants
apparently had no documentation to support their claimed identity, officials
who searched the “MV Sun Sea” found many unclaimed identity documents that had
been partially destroyed. Significantly, there were a number of children on
board; it was important that the identity of the children and their alleged
parents be established to negate the possibility of child smuggling. These and
other factors not normally present in the arrivals of refugee claimants by
other means created a situation where the Minister placed a high value on
establishing identity.
[8]
For all of
the Respondents in these five cases, the key concern for the Minister was
identity. At all of the detention reviews leading to the ID decisions, the
Minister sought to continue detention on the basis that identity had not yet been
established. In each case, the member of the ID ordered release of the person,
subject to terms and conditions. As of the date of the hearing of these
applications for judicial review, the Minister is satisfied as to the identity
of each of the Respondents in the cases at bar.
[9]
The
Respondents argue that, because they have been released, the applications for
judicial review are now moot and should not be heard. For the reasons that
follow, I agree that the applications are now moot, on the basis that identity
is no longer at issue between the parties. Further, I will not exercise my
discretion to hear them.
[10]
The
leading case on mootness is Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, 33 CPC
(2d) 105 [Borowski]. In that case, the Supreme Court of Canada provided
guidance on the application of the doctrine of mootness, particularly in
respect to when courts should exercise discretion in departing from the usual
practice of not deciding hypothetical or abstract questions. As a general
principle, the Supreme Court held that a court should not render a judgment in
circumstances where its decision will have no effect in resolving a controversy
that affects (or may affect) the rights of the parties.
[11]
In
determining whether an issue is moot, at paragraph 16 of its reasons in Borowski,
above, the Supreme Court of Canada outlined out a two step analysis. The first
step is for the court to determine whether there remains a live controversy. If
the controversy no longer exists, the issue will be considered moot. Second, if
the issue is moot, the court must then decide whether it should exercise its
discretion and hear the case in any event. The following three factors are to
be considered in the exercise of discretion: (1) the existence of an adversarial relationship between the
parties; (2) the concern for judicial economy; and (3) the need for the court
not to intrude into the legislative sphere.
[12]
The
Minister acknowledges that, because the identity of the Respondents is no
longer a live issue, the factual dispute between the parties no longer exists.
However, the Minister urges this Court to exercise its discretion to hear the
cases.
[13]
I agree
that the issue that formed the basis of the request by the Minister for these
judicial reviews no longer exists. The Minister was seeking to detain the
Respondents for the express purpose of establishing their identities; those identities
have now been established. There is no live controversy.
[14]
I turn now
to consider the factors outlined in Borowski, above, to determine whether
I should exercise my discretion to hear these cases in any event.
[15]
With
respect to the first rationale, I agree that there is still an adversarial
relationship between the parties. The underlying issue is the interpretation of
s. 248 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations] in cases where there are grounds for
continued detention under s. 58(1)(d) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 [IRPA]. Section 248 sets out a number
of factors that are to be considered where it has been determined that there are
grounds for detention. The Minister takes a very restrictive view of how s. 248
of the Regulations should be interpreted where the Minister is of the
opinion that the identity of a foreign national has not been, but may be,
established (see IRPA, s. 58(1)(d)). On the other hand, the Respondents
take a broader view. I expect that the respondents in the remaining 54 cases
will take the same position as the Respondents in this case, leaving the
adversarial relationship in tact.
[16]
The second
rationale is described as “judicial economy”. This consideration was described
by the Supreme Court, in Borowski, above, at paragraph 36:
[A]n expenditure of judicial resources is
considered warranted in cases which although moot are of a recurring nature but
brief duration. In order to ensure that an important question which might
independently evade review be heard by the court, the mootness doctrine is not
applied strictly … The mere fact, however, that a case raising the same point
is likely to recur even frequently should not by itself be a reason for hearing
an appeal which is moot. It is preferable to wait and determine the point in a
genuine adversarial context unless the circumstances suggest that the dispute
will have always disappeared before it is ultimately resolved.
[17]
The
Minister points out that these applications are the lead cases of a group of 61
specially‑managed proceedings all of which raise similar issues. In
particular, one common issue raised is the interpretation and application of s.
248 of the Regulations in cases where there are grounds for continued
detention under s. 58(1)(d) of IRPA, in the context of a mass arrival of
refugees to Canada. The Minister asserts that
this issue has not previously been considered by the Federal Court on judicial
review.
[18]
I agree
that, absent anything further, this is a strong argument for exercising my
discretion. However, there are other factors that must be considered. First, it
appears that the Minister has resolved the identity for many of these migrants.
In the event that the Minister’s continuing investigations reveal new reasons
for re-arrest or continued detention (such as inadmissibility for security,
suspected human rights abuses or other reasons), the Minister may seek
detention on those grounds. Any decision on my part with respect to the meaning
of s. 248 of the Regulations would not be helpful, in any of the
remaining 61 cases where identity is no longer at issue between the parties.
[19]
Secondly,
in B046, B047, above, one of the issues raised by the Minister was
whether the ID member, in his common decision for the two Respondents,
misconstrued s. 248 of the Regulations. In B046, B047, above, identity
remained a live issue and, in spite of arguments made to the contrary by the
Respondents, I concluded that the matter was not moot. In those cases, I found
errors in the common decision of the ID member, although not with respect to
the member’s construction of s. 248 of the Regulations. However, in
reaching a conclusion on the issue before me, I provided an analysis of s. 248
of the Regulations. Having reviewed the records before me in these five
cases, I cannot believe that the result, if the matters were dealt with, would
give any different guidance or interpretation of s. 248 of the Regulations.
Because the question of statutory interpretation was not determinative, I
declined to certify a question in B046, B047, above.
[20]
I
appreciate that the parties would prefer to have the views of the Federal Court
of Appeal on this issue; so would I. The only way to accomplish that objective
would be to certify a question. However, given the disappearance of the factual
basis for these cases, the Court of Appeal’s decision in XXXX v Canada (Minister of Citizenship
and Immigration), 2011
FCA 27, 18 Admin LR (5th) 68 leads me to conclude that it is unlikely that they
would consent to hear the appeal.
[21]
In sum, hearing these
judicial reviews would not provide the guidance sought for the 54 cases that
remain to be considered.
[22]
The third
consideration is whether a pronouncement by this Court, in the absence of a
dispute affecting the rights of the parties, would be viewed as intruding into
the role of the legislative branch of the government. In this case, I do not
think that it would. In the circumstances, however, this is not a particularly
relevant or important consideration.
[23]
Considering all of
the relevant factors, I conclude that there is no strong argument for
exercising my discretion and I will decline to do so. The applications for
judicial review will be dismissed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the applications for
judicial review in each of the following are dismissed:
(a)
Canada (Minister of Citizenship and
Immigration) v. B031 (Court File No. IMM-5359-10);
(b)
Canada (Minister of Citizenship and
Immigration) v. B028 (Court File No. IMM-5360-10);
(c)
Canada (Minister of Citizenship and
Immigration) v. B024 (Court File No. IMM-5361-10);
(d)
Canada (Minister of Citizenship and
Immigration) v. B033 (Court File No. IMM-5445-10); and
(e)
Canada (Minister of Citizenship and Immigration)
v. B017 (Court File No. IMM-5742-10).
2.
No question of
general importance is certified.
“Judith A. Snider”
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