Date: 20070201
Dockets: IMM-2889-06
IMM-3175-06
Citation 2007 FC 108
Ottawa,
Ontario, the 1st day
of February 2007
Present:
The Honourable Mr. Justice Simon Noël
BETWEEN:
BACHAN
SINGH SOGI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT
[1]
This is an
application for judicial review of a decision by which the applicant (Mr. Sogi)
was refused refugee protection because he represents a danger to the safety of
Canada and his removal would not subject him to a risk described in section 97
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA). This decision of Citizenship and Immigration Canada (CIC) was rendered
by the delegate of the Minister of Citizenship and Immigration (Minister), L.J. Hill
(the delegate), on May 11, 2006. The legal basis of this decision is found in
paragraph 112(2)(a) and subparagraph 113(d)(ii) of the IRPA
and in paragraph 172(2)(b) of the Immigration and Refugee Protection
Regulations, SOR (IRPR).
[2]
Because a
removal order was enforced against the applicant (“Mr. Sogi”) on July 2, 2006, this order being the subject
of another application for judicial review (docket IMM-3175-06), and since the
applicant was admitted to India, this raises the question as to whether this
application is moot and, if it is, whether it should be heard. Given that the
preliminary applications respecting the mootness of these two applications for
judicial review (IMM-2889-06 and IMM-3175-06) concern the same facts, and since
the remedies sought and the questions of law in dispute are the same in both cases,
counsel dealt with the preliminary applications in both cases. Accordingly,
this decision concerns both cases, mutatis muntandis. However, it should
be noted that I will sometimes use the singular, knowing that this includes
each of the applications for judicial review.
I. Facts
[3]
Mr. Sogi
arrived in Canada in May 2001. In August 2002, he
was arrested and detained by the Canadian authorities because the Canadian government
had reason to believe that the applicant was a member of the terrorist
organization Babbar Khalsa International (“BKI”).
[4]
On October 8, 2002, the Immigration Refugee
Board (IRB), Immigration Division, concluded that the applicant should be deported
because he was a member of BKI, an organization that there are reasonable
grounds to believe engages, has engaged or will engage in acts of terrorism,
within the meaning of paragraphs 34(1)(c) and 34(1)(f) of the
IRPA. This decision of the IRB, Immigration Division, was confirmed by the
Federal Court (Sogi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1429 (MacKay J.)) and
by the Federal Court of Appeal (Sogi v. Canada (Minister of Citizenship and Immigration), 2004 FCA 212). However, an
application for leave to appeal against this decision was dismissed by the
Supreme Court (Sogi
v. Canada (Minister of Citizenship and
Immigration),
[2004] S.C.C.A. No. 354).
[5]
Given that
a removal order had been made, Mr. Sogi made a claim for refugee protection to
the Minister under sections 112 et seq. of the IRPA.
[6]
On December 2, 2003, the Minister’s delegate,
G.C. Alldridge, rejected the claim for refugee protection made under sections
112 et seq. of the IRPA. This decision was upheld by the Federal Court (Sogi
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 262 (Simpson J.))
but subsequently set aside by the Federal Court of Appeal on the ground that
all the evidence had not been considered; accordingly, the file was referred
back to another Minister’s delegate for redetermination.
[7]
On May 11,
2006, the Minister’s delegate rejected Mr. Sogi’s claim for refugee protection.
This is the decision challenged in docket IMM-2889-06.
[8]
On June 23, 2006, our Court dismissed with
reasons an application by Mr. Sogi for a stay of enforcement of the removal
order (Sogi v. Canada (Minister of Citizenship and
Immigration), 2006 FC
799 (Blais J.)). On June 30, 2006, the Federal Court of Appeal issued a
direction refusing the filing of a notice of appeal from this last decision.
[9]
On July 2, 2006, further to the removal order
dated June 11, 2006 (this decision was the subject of an application for judicial
review in docket IMM-3175-06), the applicant was removed to India, where he was accepted.
[10]
As
additional information for the purposes of this case, a decision concerning a
pre-removal risk assessment (PRRA), dated June 26, 2003, concluded that Mr. Sogi would
be subject to torture or persecution should he return to India. Likewise, a
second PRRA, dated August 31, 2005, reached the same conclusion.
[11]
Although
she had this information, the delegate concluded differently in her decision
dated May 11,
2006. To reach
this decision, she used the most recent information concerning the situation in
India and considered individual cases
comparable to that of Mr. Sogi to conclude that in returning to his country of
origin the applicant would not be subject to any risk of torture. In the
present application for judicial review, Mr. Sogi challenges the delegate’s
conclusions.
[12]
Given that
Mr. Sogi’s file contains protected information, the delegate had access to it, but
Mr. Sogi received a summary of it. In the course of this judicial review, the
Minister made an application for non-disclosure of this protected information under
section 87 of the IRPA. After studying the matter and holding a hearing, the
undersigned allowed the application for non‑disclosure.
II. Remedies sought
[13]
In his
application for judicial review in docket IMM-2889-06, Mr. Sogi is seeking the
following remedies:
-
set aside the
challenged decision and order a new consideration of his application for
protection by another authorized person in accordance with the reasons of this Court
and in a manner consistent with the reasons for decision to be rendered in this
case;
-
render a
declaratory judgment regarding the constitutional validity of sections 87,
112 and 113 of the IRPA and sections 167 and 172 of the IRPR;
-
stay all
removal proceedings against the applicant;
-
reserve
all other remedies for the applicant, pursuant to sections 18, 18.1 and 18.2 of
the Federal Courts Act, R.S.C. 1985, c F-7.
[14]
In docket
IMM-3175-06, the remedies sought by the applicant read as follows:
- issue a
permanent injunction with a declaratory judgment stating that Mr. Sogi’s
special situation does not allow the enforcement of a removal order, as a remedy
under section 24 of the Canadian Charter of Rights and Freedoms, Part I
of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), 1982, c. 11 (Charter);
- reserve
any other remedies for the applicant, pursuant to sections 18, 18.1 and 18.2 of
the Federal Courts Act.
[15]
For both
of these cases, the notice of constitutional questions reads as follows:
[translation]
(A)
Sections
87, 112 and 113 of the IRPA, as well as sections 167 to 172 of the IRPR,
infringe sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms
by authorizing the use of irrelevant criteria concerning the degree of
dangerousness in connection with the application for protection, which
contaminates and invalidates the process.
(B) Sections 112 and
113 IRPA, together with section 87 of the IRPA, infringe section 7 of the Canadian
Charter of Rights and Freedoms and section 2 of the Canadian Bill of
Rights by depriving the applicant of a public, fair, impartial hearing without
secret evidence (adduced against him) for the determination of his application
for protection, and before an independent tribunal for an oral hearing on the
merits.
(C) Subsection
112(3) and paragraph 113(d) of the IRPA infringe sections 7 and 12 of
the Canadian Charter of Rights and Freedoms and the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention Against Torture), of which Canada is a signatory, by allowing an
application for protection to be rejected in spite of the evidence of a risk of
torture and by subjecting the applicant to a constant threat of removal to a
country in which there is a probable risk of torture.
III. Respective positions of the parties
[16]
At the
beginning of the hearing, counsel for Mr. Sogi requested that the preliminary
issue in both cases be decided: Is the application for judicial review moot?
Why delve into the merits of an issue if the application for judicial review is
moot? Counsel for the Ministers agreed on this point. In addition, counsel for
Mr. Sogi, while admitting that the constitutional issue was similar to that in Charkaoui
(Re), 2005 FC 1670 (Charkaoui), suggested to the Court that the hearing
of the case be postponed to after the hearing of the appeal from this decision
by the Federal Court of Appeal, scheduled for mid-February 2007, in case this
application for judicial review is not moot. Counsel for the Ministers
suggested the same approach.
[17]
The issue
of mootness was raised in the memorandum of fact and of law of the Ministers. In
short, it was submitted to the Court that, considering the case law, the
application for judicial review was moot. However, it was suggested that the case
be heard to a certain extent, considering the issues of public interest at
stake. The issues “of public interest” were not specified.
[18]
In
addition, it should be noted that in the submissions of counsel for the
Ministers, in answer to a question of the undersigned and for the purposes of
transparency, it was stated that the Ministers did not want a preliminary
measure to give the impression that they did not have a strong argument of
their own to counter the applicant’s arguments on the merits, but in fact and
in law the application for judicial review was moot.
[19]
Counsel
for Mr. Sogi wanted to know what to expect in connection with the written
submissions, supplemented by oral submissions, and requested right from the
beginning that the Court decide the issue as to whether the application for
judicial review was moot. She did so viva voce for both IMM-2889-06 and
IMM-3175-06.
[20]
In short,
Mr, Sogi’s position was to the effect that, in spite of the fact there was
evidence which could lead to the conclusion that the applications were moot,
the case was not moot, because Mr. Sogi was asking the Court to reserve all remedies
available under the Federal Courts Act. Counsel for Mr. Sogi did not
give any examples or cases which would concretely demonstrate what other remedies
Mr. Sogi could request. She added that should this application be moot, I
should use my discretion and decide to hear it.
[21]
Having
heard the parties on this point, I have agreed to their request to determine
the issue of mootness and to postpone the hearing of the matter to a date after
the Federal Court of Appeal hearing in Charkaoui, should the result of
this decision be that the application for judicial review is not moot.
IV. Legal framework required for the determination to be
made
[22]
The seminal
judgment for analysing the question “Is the application for judicial review moot?”
is Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342 (Borowski)
of the Supreme Court of Canada. I also intend to cite case law from our Court
that is specifically applicable to immigration matters, while taking into
consideration the special circumstances of the case at bar.
[23]
In Borowski,
Mr. Justice Sopinka, writing for the Court, stated that a case is moot when the
decision to be rendered will have no tangible effect on the rights of the
parties involved. In such a case, a court is warranted in refusing to determine
the issue. However, a court may use its discretion and decide to hear a case if
it can explain the desired objective in determining a moot issue.
[24]
The approach
with respect to mootness involves a two-step analysis. It is first necessary to
determine whether the requisite tangible and concrete dispute has disappeared,
thus rendering the issues academic. If so, it is then necessary to decide if
the court should exercise its discretion to hear the case, taking into
consideration the circumstances of the case and the objective sought in
determining the issue. In Borowksi, the Supreme Court suggested that in
the second step the following criteria should be taken into consideration to
determine if discretion should be exercised (Borowski at pages 358-363):
-
the courts’
competence to resolve legal disputes, which is rooted in the adversary system;
-
the
concern for judicial economy;
-
proper
awareness of this Court’s law-making function. Other criteria may also be
considered.
[25]
The case
law of this Court has consitently been to the effect that the removal of an
applicant makes the judicial review of a decision rejecting an application for
protection moot when the evidence does not disclose any irreparable harm. These
precedents establish that in such a case the Court should dismiss an
application for the stay of the enforcement of a removal order (see Figurado
v. Canada (Solicitor General), 2005 FC 347 (Figurado);
Nalliah v. Canada (Minister of Citizenship and
Immigration),
2005 FC 759; Thanotharampillai v. Canada (Solicitor General), 2005 FC 756). As mentioned
earlier, on June 23, 2006, Blais J. of our Court dismissed an application for
the stay of a removal order made against Mr. Sogi, based on the notion of
irreparable harm. He concluded as follows: (see Sogi v. Canada (Minister of Citizenship and
Immigration),
2006 FC 799 (Blais J.)):
38. With regard to the documentary evidence filed
before the PRRA officer as well as before me, it is quite clear that the judge
must proceed to review this evidence and, as far as I am concerned, I consider
that I need not return to or reexamine in detail all of the evidence that had
been submitted previously to the PRRA officer. However, I find it necessary in
the particular circumstances of this matter to review all of the documentary
evidence that had been filed as well as the new documentary evidence filed by
the applicant’s counsel in support of this motion to stay.
39. As the Minister’s counsel correctly points
out, the Indian State adopted several
special laws at the beginning of the insurgency in Punjab in the 1980s, which
resulted in many human rights violations. Those violations led to much
criticism of the Indian authorities by international organizations. However, it
is clear that more recently, the situation has improved greatly in India even
if there are several pockets of violence inter alia in the regions of Jammu
and Kashmir and in some other regions further south. However, the
situation in Punjab, where the applicant comes from, has
evolved considerably and has improved a great deal since the mid-1990s. The new
evidence filed since the decision dated May 11, 2006, cannot in any event lead
me to find that the determinations made by the PRRA officer could be considered
unreasonable.
. . .
52. I
personally examined the documents included in the voluminous documentary
evidence filed before the PRRA officer as well as before me and I have no
other choice but to find that the applicant failed to persuade me that he could
be the victim of torture or of cruel and unusual treatment if he were removed
to India.
[Emphasis added]
[26]
However, in
Figurado, Martineau J. suggested that in determining an application for a
stay of enforcement, an approach based only on irreparable harm must be
tempered, as the loss of the opportunity to apply for judicial review may in
itself constitute irreparable harm. In obiter, Martineau J. proposed that
when there is a serious issue to be determined in connection with a negative
PRRA decision which will subject the applicant to a risk of persecution or
torture, and a stay is requested pending the determination of an application
for judicial review made by the applicant in connection with the PRRA decision,
there is irreparable harm, and in general the balance of convenience will be in
the applicant’s favour. However, he added that if the motions judge is of the
opinion that the application for a stay does not raise a serious issue, no stay
should be ordered. Martineau J. writes the following at paragraph 45 in Figurado:
45. Where there
is a serious issue in respect of a negative PRRA decision resulting in exposing
the applicant to persecution or subjecting him personally to a danger of
torture or a risk to life or cruel or unusual treatment or punishment, for
which a stay is sought pending the determination of the underlying judicial
review application, irreparable harm will necessarily result and the balance of
convenience in such a case will normally favour the applicant. Thus, a stay
should normally be granted by the Court in these circumstances apart from the
question of whether the underlying judicial review application may also be
otherwise rendered moot if removal is affected. On the other hand, following a
negative PRRA decision, where the Motions Judge does not find a serious
issue on a stay, there is thus no logical reason to stay the removal order
pending the determination of the judicial review application with respect to a
PRRA decision which by itself, if positive, amounts to a stay. The
applicant is removed and the judicial review application is allowed to become
moot on the assumption that if the stay has been refused on the ground that
there is no serious issue, then leave will not normally be subsequently granted
by the Applications Judge (since it will be difficult in these circumstances to
submit that there is a fairly arguable case). However, this basic assumption
failed in the particular case resulting in the question now before the Court.
This particular feature certainly renders the present case exceptional.
[Emphasis
added]
[27]
In the
case at bar, the situation is identical to the one described by Martineau J. in
Figurado in the excerpt cited above. In June 2006, Blais J. dismissed
Mr. Sogi’s application for a stay of the removal order, and Madam Justice
Tremblay-Lamer granted the application for leave by order, in accordance with
the custom and tradition of this Court. Accordingly, I do not have the benefit
of reasons on this point. However, in his reasons in Sogi v. Canada (Minister
of Citizenship and Immigration), 2006 FC 799, Blais J., in deciding docket IMM-2889-06
(decision rejecting the application for protection) and docket IMM-3175-06 (decision
regarding the enforcement of the removal order), studied and analyzed the
decision of the Minister’s delegate dated May 11, 2006, as well as the decision to
enforce the removal order, so as to assess a serious issue in each one of these
cases. I will refer to some of the reasons given by Blais J., not to show that
his assessment of the case is the same as mine, but rather to follow up on the
words of Martineau J. in Figurado, cited in the preceding paragraph. The
following is an excerpt from the decision of Blais J. in (Sogi v. Canada (Minister of Citizenship and
Immigration),
2006 FC 799 (Blais J.)):
11. To determine whether the applicant raised a
serious issue to be tried in his motion to stay, we must examine the two
applications for judicial review on which this motion to stay is based. In
fact, last May 31, the applicant filed an application for judicial review of
the decision denying him his refugee claim following a pre-removal risk
assessment (PRRA) issued by Citizenship and Immigration Canada, represented by
the Minister’s delegate, L.J. Hill, dated May 15, 2006.
12. Indeed, the applicant also applied for a
judicial review of the enforcement of the removal order against the applicant,
on June 11, 2006.
13. The applicant filed a single motion to stay
related to the two applications for judicial review.
14. The judge hearing a motion to stay does not
have the responsibility of reviewing the findings of the officer responsible
for issuing a notice regarding the expectation of harm if the person were to be
removed to his native country.
15. The judicial review of the PRRA officer’s
decision will be decided at a later stage; first, a judge shall examine whether
the leave must be granted and then, if leave is granted, a judge will examine
the reasonableness of the decision on the merits in accordance with legislative
and jurisprudential requirements.
16. It is my responsibility at the stage of the
stay to determine whether, prima facie, the decision is consistent with
the applicable legal provisions and whether the decision-maker reviewed the
evidence in the record including the secret evidence and specifically the
Security Intelligence Report (SIR) and the documents referred to in that
document. Until there is a new order, the decision is legal, and I have the
responsibility to consider it in light of the new evidence filed in the record,
if there is any.
17. It appears clear on reading the PRRA decision,
which I reviewed, that the officer’s review of Mr. Sogi’s situation was
complete, detailed and systematic. Inter alia, after his refugee claim
was denied by the United Kingdom, he entered Canada
under a false identity while the British authorities were preparing to remove
him. On that point, the reasons stated by the British authorities were the same
as those of the Canadian authorities, namely that his presence was no longer
authorized on British soil because he constituted a threat to national security
due to his involvement in terrorist activities on an international scale.
18. Although it was acknowledged during his many
immigration hearings that he had used many false identities on British soil and
well as on Canadian soil, and when he traveled to India and to Pakistan,
Mr. Sogi continued to deny that he was a terrorist member of the
international terrorist group “Babbar Khalsa International” (BKI) organization.
19. The PRRA officer examined and considered the
extensive documentary evidence in the record submitted by both parties.
20. At page 16 of his decision, the PRRA officer
discussed a report by a Danish fact-finding mission to Punjab,
Danish Immigration Services, May 2000:
It continued by saying “that several people who had
previously been militants and who had served their sentences for terrorist
activities now lived a normal life in Punjab.” For example, a politician who
had been accused of involvement in the assassination of Indira Gandhi in 1984
was now a Member of Parliament. The fact-finding mission consulted NGOs and
independent lawyers and most of them believed that currently there was no militant
movement in Punjab. Most active members were now either
inactive or living abroad.
21. Later
on in his analysis at page 19, the PRRA officer discusses the repeal of the Prevention
of Terrorism Act (POTA):
Alternatively,
because of the repeal of POTA, and the protections offered by the new
legislation, in the event that he was so very well-known, I am still not
convinced that he couldn’t return to any part of India
without facing such risks.
There
is evidence of BK militants having been arrested in the last year or so. They
were arrested in relation to specific terrorist actions. I have seen nothing
persuasive in the evidence that even those active militants who have been
arrested have been subjected to harsh treatment.
There
is nothing convincing in the evidence that would lead me to conclude that Mr.
Sogi would be subjected to torture or a risk to his life or cruel and unusual
treatment or punishment if he were to be arrested because of his membership in
the BK(I). I note the letter of Amnesty International dated August 6, 2003 to
Lorne Waldman indicating that a person believed to belong to an organization
such as BKI could be charged under POTA, the provisions of
which were believed by AI to violate international human rights standards.
The
evidence establishes that the POTA, Prevention of Terrorism (second)
ordinance 2001 has been abolished and the new act, Prevention of Terrorism Act,
2002 has been adopted. This act has been recognized as being a notable
improvement over POTA and provides safe guards to an accused person.
Section 33 of the Act provides that confessions cannot be compelled or induced
and that any complaint of torture is to be investigated by a medical officer.
Thus, the concerns raised by the August 6, 2003 letter are not persuasive. I
note that Mr. Sogi could be subjected to prosecution for the role he might have
played in the aborted bombing but that the new legislation protects against the
abuses of the former legislation.
22. It is interesting to note that in the PRRA
agent’s report, he carefully reviewed the risk faced by other militants from Punjab who
were removed to India after several years abroad, and I quote
at page 18:
In
order to better assess the risk that may face Mr. Sogi upon return to India I
have looked at the militants who have returned to India. Mr.
Wassan Singh Zaffarwal, chief of the Khalistan Commando Force, recently
returned to India after 19 years abroad. He was treated to
an overwhelming welcome by the people of his region. He has been exonerated on
7 of the 9 criminal charges against him. He was arrested shortly after his
return to India for the other charges but was released
on bail. In the ‘Press Trust of India’ dated March 27, 2003, he said “there is
no scope for revival terrorism in Punjab.”
Another
former militant, Jagjit Singh Chauhan, returned from England in
2001. During his early years in England, he
propagated the cause of Khalistan on a radio station under his stewardship. In
addition, Satnam Singh Paonta, an associate of Gajinder Singh, chairman of the
Del Khalsa International, a pro-Khalistan movement, also returned to India. As
reported in ‘The Economic Times’ “Chauhan put a price on then Indian prime
minister Indira Gandhi’s head and yet he is being allowed to roam around
freely”. There were no reports on file to indicate that either of them has
faced torture upon their return.
23. The PRRA officer proceeded with his analysis
based on the information and the evidence before him, he determined that
militant Sikh extremists who were removed to India, had been treated normally
for persons charged with criminal offences, inter alia they were given
the opportunity for bail and ultimately faced charges before the Indian courts,
the same as any other citizen.
24. After reviewing and analyzing in detail the
conditions in India and Mr. Sogi’s personal situation, the PRRA officer
determined that Mr. Sogi would not be subject to a risk for his life, or
to a danger of torture, or to a risk of cruel or unusual treatment or if he
were to return to India, and this was after reviewing all of the evidence
available, not only the evidence involving Mr. Sogi directly, but also the
documentary evidence on the situation in India and on the situation of
militants who returned to India after residing abroad for several years.
25. The officer also reviewed the proposed
alternatives to his removal. He dismissed them all, first, because
Mr. Sogi had not been credible in the past and, second, in view of the
evidence of his membership in a terrorist group. He also determined that the
proposed conditions to have friends or other persons responsible for his
undertakings if he were released did not at all offset the danger that
Mr. Sogi posed to Canada, the danger that was recognized
unequivocally in an earlier decision.
26. With regard to weighing the documentary
evidence, it is a fact that the PRRA officer assigned more weight to some
documents than to others, inter alia a report issued by the Refugee
Board (RB) rather than another report issued by Amnesty International. Whether
or not we agree with either of these documents, it is not my place to reassess
all of the documents, but rather to determine whether the analysis that was
carried out on them was unreasonable.
27. There may very well be contradictions within
the voluminous reports regarding the situation in India; the
issue for the Federal Court is not to decide for the immigration officer but
rather to examine whether the analysis of the documentary evidence available
was unreasonable and whether his findings are themselves unreasonable. It is
the very essence of analysis that certain documents are given more weight than
others; the suggestion by the applicant’s counsel to the effect the officer’s
findings should be set aside because he assigned more weight to one document
and dismissed another is inadmissible.
28. With regard to the application for leave filed
against the decision to enforce the order to remove the applicant (docket
IMM-3175-06), the factual arguments are the same as those in the matter
challenging the PRRA officer’s decision, adding that the applicant acknowledged
that the removal officer has less room to maneuver than the PRRA officer, that
the only legal grounds raised involve the Charter, and that the enforcement of
the removal was inconsistent with the Charter. Clearly, under the current
circumstances, I assign little weight to this argument since in fact the
removal officer enforces a decision, examines whether the criteria are met and
proceeds in accordance with the appropriate legislation. The constitutional
grounds are hardly applicable under the circumstances.
29. Without going over the entire matter, I do not
believe that there is truly a serious issue raised at this stage regarding
docket IMM-3175-06. Under the circumstances, these arguments could be assessed
by the judge who will determine whether leave may be granted for the judicial
review; but as far as I am concerned, I assign little weight to these arguments
raised in regard to the failure to comply with the provisions of the Canadian
Charter of Rights and Freedoms and more specifically, with regard to the
factual framework supporting the arguments of the findings of the other
Minister’s officer, namely the PRRA officer, who analyzed the facts and found
that there was no serious risk of torture if Mr. Sogi were to be deported
to his native country.
30. The case law informs us that the necessary
threshold for determining that there is a serious issue to be tried is not very
high.
31. Assuming for analytical purposes without
deciding whether there is a serious issue in docket IMM-2889-06, I will now
examine whether there is irreparable harm.
[Emphasis added]
[28]
Although
Blais J. did not conclude there was a serious issue and therefore left this
determination to a subsequent decision-maker, he nevertheless made comments
which amount to a conclusion to the effect that there is no serious issue in
Mr. Sogi’s case, in both dockets (IMM-2889-06 and IMM-3175-06). I must note
that his comments are not the basis of my conclusions, as I am not at the stage
of deciding the application for judicial review, but rather at the preliminary
stage, that of determining whether the applications for judicial review are
purely moot. I deemed it useful to quote extensively from the reasons of Blais
J., considering that in Figurado, Martineau J. had stated that there was
no logical reason to grant a stay of a removal order when the judge called on
to decide the matter noted that it was difficult to identify a serious question.
V. Issues
(1) Is the application for
judicial review moot?
(2) If the application for
judicial review is moot, should I use my discretion and hear the case?
VI. Analysis
(1) Is the application for
judicial review moot?
[29]
As a
reminder, I cite the following excerpt from the reasons of Sopinka J. in Borowski
at page 353 of the judgment:
The
doctrine of mootness is an aspect of a general policy or practice that a court
may decline to decide a case which raises merely a hypothetical or abstract
question. The general principle applies when the decision of the court
will not have the effect of resolving some controversy which affects or may
affect the rights of the parties. If the decision of the court will have
no practical effect on such rights, the court will decline to decide the
case. This essential ingredient must be present not only when the action
or proceeding is commenced but at the time when the court is called upon to
reach a decision. Accordingly if, subsequent to the initiation of the
action or proceeding, events occur which affect the relationship of the parties
so that no present live controversy exists which affects the rights of the
parties, the case is said to be moot. The general policy or practice is
enforced in moot cases unless the court exercises its discretion to depart from
its policy or practice. The relevant factors relating to the exercise of
the court's discretion are discussed hereinafter.
The approach in recent cases involves a two-step
analysis. First it is necessary to determine whether the required
tangible and concrete dispute has disappeared and the issues have become
academic. Second, if the response to the first question is affirmative,
it is necessary to decide if the court should exercise its discretion to hear
the case . . . .
[30]
As already
mentioned, the remedies sought by the applicant are as follows:
-
set aside the
decision of the Minister delegate dated May 11, 2006, order a new consideration
of the application for protection and set aside the removal order;
-
render a
declaratory judgment (and an injunction against the removal of Mr. Sogi)
regarding the constitutional validity of sections 87, 112 and 113 of the
IRPA and sections 167 and 172 of the IRPR (see also the constitutional question
at paragraph 14 of the present decision);
-
stay all
removal proceedings against the applicant;
-
reserve
all other remedies for the applicant, pursuant to sections 18, 18.1 and 18.2 of
the Federal Courts Act.
[31]
As far as
the first remedy is concerned, I may set aside the decision of the Minister’s
delegate but I cannot order a new consideration of the application for
protection. The purpose of an application for protection, such as made by the
applicant, is to assess the risks before removal, not after it. This is the
reason why section 232 of the IRPR provides that an applicant has the benefit
of an automatic stay of the removal order while the decision on the PRRA
application is pending. In doing so, Parliament intended that the PRRA should
be determined before the PRRA applicant is removed from Canada, so as to avoid putting him
or her at risk in his or her country of origin. After all, if a PRRA applicant
is removed from Canada before a determination is
made on the risks to which that person would be subject to in his of her
country of origin, the intended objective of the PRRA system can no longer be
met. This is why section 112 of the IRPA specifies that a person applying for protection
is a “person in Canada”.
[32]
The third
remedy sought, namely, the stay of the removal order, obviously cannot be
enforced. Mr. Sogi is no longer in Canada,
as he was removed to India on July 2, 2006. No one is obliged to do the
impossible. The same is true of the permanent injunction against the removal
order (IMM-3175-06).
[33]
The last
remedy sought, namely, the application for an order reserving the applicant’s
other remedies under sections 18, 18.1 and 18.2 of the Federal Courts Act,
remains general in nature. Counsel for Mr. Sogi’s did not present any potential
scenario showing the practical utility of such a remedy and did not explain how
this reserve could constitute a useful remedy. I am therefore asked to deal in
abstractions with respect to this application for a remedy. I add for the
benefit of counsel for Mr. Sogi that it is difficult to imagine a concrete
remedy applicable to the circumstances of this case.
[34]
Lastly, I
wanted to comment on the second remedy, namely, the question of the
constitutional validity of several provisions of the IRPA and IRPR. I am of the
opinion that if this remedy is allowed, it will still offer no practical
solution to the case at bar. In fact, even if this remedy were granted, it is
difficult to imagine a remedy in the form of an order which could allow Mr.
Sogi to return to Canada. In addition, an order
allowing Mr. Sogi to return to Canada would not be enforceable against
the government of India. That being said, in Charkaoui,
I addressed in large part the constitutional question raised in the present
case, as counsel have informed me. In Charkaoui, I wrote the following on
the subject of an application to invalidate certain provisions of the IRPA on
the ground that they infringe the Charter, among other things:
[5] Second, Mr. Charkaoui
challenges the constitutional validity of the provisions of the IRPA governing
applications for protection, pre-removal risk assessment, the application of
the principle of non-refoulement and national security: paragraphs 95(1)(c),
112(3)(d), 113(b) and (c) and subparagraphs 113(d)(i)
and (ii), subsections 115(2) and 77(2), paragraph 101(1)(f) and section
104 (sections 101(1)(f) and 104 were not included in the constitutional
question, and appear only in Mr. Charkaoui's memorandum of fact and law (Mr.
Charkaoui's memorandum)) and sections 167 to 172 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (IRPR). A notice of
constitutional question was served on the Attorneys General of Canada and of
the provinces in accordance with section 57 of the Federal Courts Act,
R.S.C. 1985, c. F-7 (F.C.A.). The question submitted to the Court reads as
follows in the notice (typographical errors in the original French not
corrected):
[TRANSLATION] Do the provisions of the IRPA
. . . governing applications for protection, sections 95(1)(c) (final
portion), 112(3)(d), 113(b),(c) and (d)(i) and (ii)
and 115(2) of the IRPA, read together with sections 77(2) and the corresponding
regulatory provisions, sections 167 to 172 IRPR, violate:
(i) The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Can. T.S. 1987, No. 36?
(ii) The Convention
relating to the Status of Refugees, Can. T.S. 1969 No. 6, Preamble, s. 33?
(iii) Sections 7, 12 and
15 of the Canadian Charter, Canada Act, 1982, Schedule B?
(iv) The Canadian Bill of Rights,
8-9 Eliz. II, c. 44, R.S.C. 1985, App. III?
(v) The International
Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47?
(vi) The Universal
Declaration of Human Rights, G.A. Res 217 A (III), Doc. A/810 U.N., at page
171 (1948)?
[35]
As
submitted by counsel, if we compare the issues of constitutional validity I
dealt with in Charkaoui with those invoked in this case, it appears they
are substantially similar.
[36]
In Charkaoui,
I disposed of the issue of the constitutional validity of certain provisions of
the IRPA as follows:
[88] Having
examined the constitutional question posed in detail (see point (ii) of the
analysis), my answer is that the provisions of the IRPA governing claims for
protection (paragraphs 95(1)(c) (final portion), 112(3)(d) and
113(b) and (c), subparagraphs (d)(i) and (ii) and
subsection 115(2), read together with subsection 77(2)) and sections 167 to 172
of the IRPR do not violate sections 7, 12 and 15 of the Canadian
Charter, the CBR, the Convention against Torture, the Convention
relating to the Status of Refugees, the International Covenant or
the Universal Declaration. In short, Mr. Charkaoui has not persuaded the
Court that the protection claims system established by the IRPA is
unconstitutional. Mr. Charkaoui failed to show that the IRPA, the
application of that Act to him or the decisions made amount to torture, inhuman
treatment or degrading treatment. The ordinary procedure has followed its
course, and the length of that procedure at this point is due to its inherent
complexity and the legitimate decisions made by Mr. Charkaoui and his
representatives and by the Ministers and their representatives.
It is useful to note that the appeal against this decision
will be heard by the Federal Court of Appeal in mid-February 2007.
[37]
Having
considered each of the remedies sought, I conclude that the application for
judicial review is moot. On the basis of the evidence on record, a positive
decision on the application for judicial review will have no tangible, concrete
or practical effect. I must now determine whether I should exercise my
discretionary power and hear this case.
(2) If the application for
judicial review is moot, should I use my discretion and hear the case?
(a) Exercise of discretion
and applicable criteria
[38]
The
criteria, developed in Borowski, which must be considered to determine
whether discretion is to be used to hear a moot case are the following:
-
a court's
competence to resolve legal disputes is rooted in the adversary system;
-
the
concern for conserving judicial resources;
- the
Court’s awareness of its proper law-making function.
[39]
Before
establishing the criteria to be considered in determining whether a court
should hear a moot issue, Sopinka J. suggested a way of assessing these
criteria to determine whether or not the discretion to hear the matter should
be exercised. I cite the following excerpt (Borowski at page 358):
In formulating
guidelines for the exercise of discretion in departing from a usual practice,
it is instructive to examine its underlying rationalia. To the extent
that a particular foundation for the practice is either absent or its presence
tenuous, the reason for its enforcement disappears or diminishes.
[40]
It is
possible that other criteria may be considered. However, for the purposes of
this case, it will not be necessary to develop others: the existing criteria
are sufficient.
(i) The possibility of
deciding the case through an adversarial process
[41]
This criterion
favours the exercise of discretion. The records are complete, the parties have
filed their memoranda of fact and of law and are represented by counsel. The issue
may be decided on an adversarial basis in both cases.
(ii) The concern for
conserving judicial resources
[42]
It is
obvious right from the start that a moot issue must not unduly use up the
resources of our judicial system. However, other factors must be considered.
[43]
It must be
asked whether a judicial solution to the issue could have concrete consequences
on the rights of the parties even if in practice the problem which gave rise to
the issue would not be settled. As mentioned previously, the applicant did not specify
how a favourable decision would have tangible effects on his rights. In
addition, the applicant is asking that all of his rights to remedies be
reserved so that he may potentially obtain a remedy from this Court. This is
not appropriate for the purposes of this case. It is not possible to decide a
question of law without knowing, at the time the decision is rendered, what
will actually happen in practice. This requirement must be upheld in order to
guarantee the predictability of our judicial system.
[44]
This
exercise does not stop here. The question also arises as to whether the issue
to be determined, as it is presented, is of public significance and if it must
be determined having regard to the public interest. However, we must also balance
the use of judicial resources against the social cost of the exercise of the
right. In this case, such balancing act is easy to perform. To a large extent,
the legal issue was already determined in Charkaoui, which is the
subject of an appeal to be heard by the Federal Court of Appeal in mid-February
2007. I add that in 2007, the Supreme Court of Canada will rule on issues which
may shed some light on the procedure for applications for protection, although
the issues specifically concern the procedure for security certificates under
sections 76 et seq. of the IRPA (involving, inter alia, an appeal
from the decision of the Federal Court of Appeal in Charkaoui (Re), 2004 FCA 421).
[45]
Therefore,
with regard to the second criterion, I conclude that the concern for judicial economy
does not favour the exercise of my discretion to hear the case.
(iii) The Court’s law-making function
[46]
The Federal
Court has exclusive jurisdiction to hear applications for judicial review stemming
from the application of the IRPA. The Court plays an important role in the
development of law in this field. That being said, I have already mentioned
that the constitutional issue at the heart of this case has already been
determined to a large extent in Charkaoui, and the Federal Court of
Appeal will hear the appeal from this decision in mid-February 2007. In
addition, when the Supreme Court of Canada
hands down its judgment concerning security certificates in 2007, it is likely
to shed some light on the issues raised in the present cases. It is therefore
not necessary to develop any law on these issues. Therefore, the third
criterion does not warrant the exercise of discretion to hear the case.
(b) Conclusion concerning
the exercise of discretion
[47]
Having
discussed each of the three criteria developed in Borowski to determine
if discretion to hear a moot issue should be used, I conclude that these
criteria do not favour the exercise of discretion in the present cases. More
specifically, discretion should not be exercised simply because a matter may be
heard in an adversarial manner. It seems to me that this criterion must be supplemented
by at least one of the other two criteria. The last two criteria developed in Borowski
seem to me to be more important, considering the circumstances in this case.
These criteria require that there must be some benefit to be derived from the
matter, in that its determination must be of public interest and one of the
parties have the benefit of a concrete and tangible effect from the
determination of the issue, even if it is moot. In the case at bar, there is no
public interest, and none of the parties will be affected in a concrete and
tangible manner if the Court proceeds with the judicial review of both cases.
Accordingly, I do not see any benefit from the judicial review of these two cases.
Therefore, in my opinion, there is no reason for me to exercise my discretion
and proceed with the judicial review of these two cases.
VII.
Conclusion
[48]
Having
determined that the application for judicial review is moot, I am of the
opinion to refuse to exercise the discretion which has been granted to me to
hear the matter in both cases. Accordingly, the applications for judicial
review in dockets IMM-2889-06 and IMM-3175-06 will not be heard, given that
they have become moot.
VIII. Question for certification
[49]
The
parties asked that I reserve their right to submit a question for certification.
They ask that a certain amount of time be granted to them to submit a
question, if need be. Considering the special nature of the preliminary measure
determined herein, I agree, and the parties will have five (5) days following
the receipt of the judgment to act accordingly. If a question is submitted by
one of the parties, the other party will have five (5) days to reply. I will
sign the judgment upon the expiry of five (5) days or, if a question is
submitted, after having made the appropriate determination concerning it.
“Simon Noël”
Certified
true translation
Michael
Palles
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