Docket:
IMM-1862-11
Citation:
2011 FC 1392
Ottawa, Ontario,
November 30, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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AMPARO TORRES VICTORIA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Immigration Division
of the Immigration and Refugee Board (the “Board” or the “Tribunal”) dated
March 4, 2011, whereby the Board declined the Applicant’s request for an
immediate ruling on the applicability of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11 [Charter] in the proceeding. The
Board Member explained that she would reserve on the Charter issues
until she had heard all of the evidence and submissions pertaining to the
Applicant’s admissibility inquiry pursuant to subsection 34(1)(f) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
For
the reasons that follow, I am of the view that this application ought to be
dismissed, essentially because it is for the Immigration Division to decide the
Charter issues advanced by the Applicant before this Court can be called
upon to review such a decision.
1. Facts
[3]
The
Applicant, Amparo Torres Victoria, is a citizen of Colombia. She was born on
June 21, 1955, in the city of Cali. She claims to be a trade union and human
rights activist, as well as a founding member of the Union Patriotica, a
political movement which was apparently an umbrella organization for leftist
political parties in Colombia. The main guerrilla force in Colombia, the Revolutionary Armed Forces of Colombia (“FARC”), was involved in peace negotiations
with the government of Colombia in 1985. As part of the peace talks, the FARC
agreed to become a legalized political movement and joined the Union Patriotica
until they decided to abandon the peace process, in 1987.
[4]
As
a result of her activities, the Applicant was the subject of numerous threats
to her life. She was also kidnapped, beaten, abused and detained for several
months, allegedly by the paramilitaries, for her activities as a member of the
Union Patriotica and for being associated with the FARC. She fled Colombia upon her release in February 1993, along with her common-law spouse and their
three children. She was recognized as a refugee by the United Nations High
Commission for Refugees in Mexico, and she chose to immigrate to Canada with two of her sons. Her husband decided to remain in Mexico, to join the FARC,
and to become the international media spokesman for the FARC.
[5]
The
Applicant’s older brother is a member of the FARC, and one of her sisters was
first kidnapped and then killed by the paramilitaries because of his
involvement in the organization. Her two other sisters and her mother fled to Mexico and claimed refugee status when her other sister was first abducted.
[6]
Having
been recognized as a Convention refugee, the Applicant arrived in Canada on December 10, 1996 as a permanent resident. She then applied for citizenship on
June 13, 2000.
[7]
The
Respondent later learned of her involvement in the FARC, and referred a report
to the Immigration Division pursuant to ss. 44(2) of IRPA alleging that
she was inadmissible under ss. 34(1)(f) due to her membership in a terrorist
organization. In advancing that allegation, the Minister has relied on
confidential evidence, the disclosure of which would be injurious to Canada’s national security.
[8]
This
is the second proceeding involving the Applicant before the Immigration
Division. At the first proceeding, the member decided to determine the
subsection 34(1)(f) allegation on its merits, prior to assessing the
Applicant’s Charter challenge to IRPA’s secret evidence
provisions in the context of an admissibility hearing. The member heard all the
evidence and adjourned the hearing in order to prepare his decision.
Unfortunately, he later advised that he would be unable to render his decision
before his authority under IRPA had lapsed.
[9]
In
February 2007, the Supreme Court of Canada released its decision in Charkaoui
v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 [Charkaoui
#1]. In that decision, the Court found, inter alia, that IRPA
did not adequately protect the rights of the named person to a fair hearing,
and therefore struck down s. 33 and 77-85 of IRPA as infringing s. 7 of
the Charter. It is on the basis of that decision that counsel for the
Applicant made a motion before the first member of the Immigration Division
dealing with her case, arguing that the same reasoning applies to the
non-disclosure of information in the context of an admissibility hearing
pursuant to s. 86 of IRPA.
[10]
When
the second proceeding before the Immigration Division started, Parliament had
adopted Bill C-3. This Bill, which came into force on February 22, 2008, was
in response to the declaration of invalidity pronounced in Charkaoui #1.
In a nutshell, these amendments to IRPA introduced the special advocate
regime; pursuant to paragraph 83(1)(b), the designated judge shall appoint a
special advocate whose name must be on a list established by the Minister of
Justice. The role of the special advocate is “to protect the interests” of the named
person in closed hearings (subsection 85.1(1) of IRPA). Of relevance
for the case at bar, these amendments to IRPA have extended the role of
special advocates to all the proceedings before the Immigration Division
involving confidential evidence, including an admissibility hearing (see s. 86
of IRPA).
[11]
In
June 2008, upon the Applicant’s request, the Immigration Division appointed Mr.
Waldman as the Applicant’s special advocate. In July 2008, the Minister
provided the Applicant with the open source evidence that it intended to rely
on to establish the ss. 34(1)(f) allegation. In September 2008, Member Funston
was assigned to determine the ss. 34(1)(f) allegation on its merits. In
October 2008, the Applicant advanced several motions, including a request for a
ruling that s. 7 of the Charter be engaged in the proceeding. In
October 2008, Member Funston declined that request.
[12]
Further
open source information was adduced in August 2009. In November 2009,
following the Applicant’s and Mr. Waldman’s request, Mr. Dadour was appointed
as a second special advocate. In December 2009, Mr. Dadour was provided with
copies of prior correspondence, decisions and a transcript of a pre-hearing
conference. Mr. Dadour was given access to the closed material in February
2010.
[13]
The
special advocates filed two motions in late March 2010. Closed hearings were
held in June and July 2010 on the first motion concerning the order of proceedings.
In September 2010, the Immigration Division held that counsel for the Applicant
should participate in the special advocates’ first motion and make submissions
thereon on the Applicant’s behalf. Counsel was provided with a copy of the
special advocates’ and the Minister’s submissions on the order of proceedings
issue.
[14]
On
March 4, 2011, the Board Member ruled that the closed proceeding should proceed
before the public proceeding, in order for the Applicant to be as informed as
possible regarding the issues and evidence that confronted her. With the
Minister presenting his secret evidence first, and the special advocates being
given the opportunity to challenge that evidence and cross-examine any
witnesses, this would result in as much evidence as possible being potentially
disclosed to the Applicant at the proceeding, as well as any further summaries
of the evidence. That being said, the Board Member did not preclude the
possibility to return to the closed proceeding, after the public proceeding, in
order to enquire into the Minister’s secret evidence should any new evidence
arise in the public proceeding that could have led the special advocates to
challenge the relevancy, reliability and sufficiency of any aspect of the
Minister’s secret evidence. This aspect of the Board’s decision is not
challenged in this application for judicial review.
[15]
In
early 2011, the Applicant asked the Immigration Division to make an immediate
determination as to whether her s. 7 Charter rights were engaged in the
Immigration Division proceedings concerning her. In her March 4, 2011 decision,
the Board Member recognized that the issues of fairness, the principles of
fundamental justice and one’s rights guaranteed under the Charter have
arisen throughout these proceedings. She also acknowledged that both public
counsel and the special advocates have argued that the Applicant’s s. 7 Charter
rights are engaged, as the Applicant is subject to a proceeding that could
ultimately lead to her removal from Canada and subsequent persecution. She
nevertheless declined to rule immediately on this issue, explaining that she
would reserve on the Charter issues until she had heard all the evidence
and submissions on the admissibility issues:
In my view, it is premature to make findings with
respect to an individual’s Charter rights with respect to the potential
consequences of an admissibility proceeding while the issue turns upon
something that, in fact, may never happen: i.e., the issuance of a removal
order.
[16]
This
is the decision that is being challenged in the present application for
judicial review, which was filed on March 22, 2011.
[17]
Subsequent
to that decision, the Immigration Division released another decision dated May
12, 2011 that is material to the case at bar. The special advocates have put
forward a number of preliminary motions, starting on September 11, 2009, for
full disclosure of the material relating to the Applicant, including the entire
Canadian Security Intelligence Service (“CSIS”) file. These motions have led
to additional disclosure by the Minister, who agreed voluntarily to provide
further material to the special advocates, first on December 11, 2009 and then
again, on December 23, 2010. Upon review of the new material, however, the
special advocates renewed their application for full disclosure on February 21,
2011.
[18]
The
motion of the special advocates is predicated on the applicability of the
decision of the Supreme Court of Canada in Charkaoui v Canada (Minister of
Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 (Charkaoui
#2) to the circumstances of the present case. In that decision, it will be
remembered, it was held that to uphold the right to procedural fairness of
people subject to a security certificate, CSIS is required to retain all its
operational notes and to disclose them to the ministers for the issuance of a
security certificate. Subsequently they would be required to disclose them to
the designated judge for the review of the reasonableness of the certificate
and of the need to detain the named person. Pursuant to ss. 85.4(1) of IRPA,
added by Bill C-3, the special advocates shall be provided with a copy of all
information and evidence that is provided to the judge by the Minister.
[19]
The
special advocates asserted that their request for full disclosure was in
keeping with disclosure requirements set out in Charkaoui #2; basic
administrative law principles of procedural fairness and natural justice, and
the rights enjoyed by the Applicant under section 7 of the Charter.
They were of the view that an admissibility hearing before the Immigration
Division involving an application for non-disclosure is akin to a security
certificate proceeding. They both involve the non-disclosure of evidence to the
subject of the proceedings, they both require that there be a substantial
substitute in place of the person concerned, and the consequences to the named
person in security certificate cases is the same as those encountered by the
person concerned in an admissibility hearing, namely, as in this case, possible
removal to Colombia.
[20]
The
Immigration Division granted the motion for disclosure. In doing so, Member
Funston highlighted her understanding of Charkaoui #2, to the effect
that for a security certificate proceeding to comply with fundamental justice,
there must be disclosure of the materials in CSIS’ possession that relates to
the named person. She determined that the procedural protections mandated by Charkaoui
#2 would also apply to the Immigration Division concerning the Applicant. Similar
to a security certificate proceeding, the hearing on the ss. 34(1)(f)
allegation could result in a deportation order. The Immigration Division
proceeding was subject to the same protection of information scheme (under IRPA)
that applies to security certificates. Therefore, she agreed with the special
advocates that there was no real difference between the consequences of a
security certificate and those of the ss. 34(1)(f) proceeding before the
Immigration Division.
[21]
For
good measure, the Immigration Division did point out one real difference
between security certificate cases and section 86 proceedings in the context of
an admissibility hearing. As the Board Member noted, in the case of a security
certificate, the deportation order is issued first by the Minister. The
relevance, reliability and sufficiency of the Minister’s information is then challenged
by the special advocates in the context of the closed proceedings. The order
is reversed in the case of an admissibility hearing, where the relevance,
reliability and sufficiency of the Minister’s information is challenged by
special advocates during the closed proceedings involving the section 86
portion of the admissibility hearing. This would occur prior to any final
determination as to whether or not the person concerned is inadmissible and,
therefore, should be issued a deportation order. That being said, the
Immigration Division found that distinction of no significance, as the ultimate
determination made by the Federal Court in a security certificate proceeding
and by the Immigration Division in the context of an admissibility hearing, can
produce the same result (i.e. the person is or is not inadmissible pursuant to
s. 34 of IRPA). Moreover, what happens at the closed and open proceedings
before the Federal Court and the Immigration Division is virtually the same.
[22]
Despite
these similarities, the Minister had argued that as this is not a security
certificate case, neither the Charter nor the disclosure requirements
set out in Charkaoui #2 apply in an admissibility hearing before the
Immigration Division. Relying on Rule 3 of the Immigration Division Rules,
SOR/2002-229 [Rules], which provides that “the Minister must provide
…any relevant information or document that the Minister may have…”, the
Minister argued that there is no duty to disclose irrelevant material, nor to
disclose more evidence or information to the special advocates than what would
be disclosed to the person concerned.
[23]
The
Immigration Division rejected the Minister’s arguments, and found that the
circumstances of the Applicant are not those of a typical admissibility hearing
for two reasons. First, she is a declared Convention refugee who was found to
have a well-founded fear of persecution in Colombia. Second, she is the
subject of an admissibility hearing where the Minister has applied for
non-disclosure of information pursuant to section 86 of IRPA.
Accordingly, the Board Member determined that those characteristics made the
Applicant’s case comparable to that of a security certificate, and that the
same procedural protections that fundamental justice would require there, would
also apply to the ss. 34(1)(f) proceeding:
[33] Both procedures involve inadmissibility on
security grounds, both procedures involve protected information that is not
disclosed to the subject of the proceedings, both procedures are governed by
the same statutory provisions regarding the protection of information, both
procedures involve Special Advocates whose role and responsibilities are
identical in both proceedings. There are, in my view, many more similarities
between the two proceedings than there are differences.
[34] In my view, the aforementioned distinguishing
characteristics lead to a more apt comparison with the Security Certificate
cases. Through the section 86 proceedings, Ms. Torres, potentially, is being
denied the right to know the entire case to meet. I am more persuaded by the
arguments of the Special Advocates in their submissions that Ms. Torres’ case
is more akin to the Security Certificate cases in that there is essentially no
difference between the two proceedings. As such, since the procedural
protections of section 7 of the Charter apply in the Security
Certificate cases, so too should those same protections apply in this
particular case.
2. Issues
[24]
This
application for judicial review raises two issues. The first one is whether this
application is moot, in light of the decision made by the Immigration Division
on May 12, 2011. The second is whether the Court should decline to rule on
this application because it would be premature to do so.
3. Analysis
a)
Mootness
[25]
Counsel
for the Minister argued that the application for judicial review is now moot as
a result of the decision reached by the Immigration Division on May 12, 2011.
It is suggested that the Applicant’s original complaint was with respect to the
delay in having the Immigration Division determine whether her s. 7 Charter
rights were engaged in the proceedings. Member Funston having since found that
the Applicant’s s. 7 Charter rights are engaged in the ss. 34(1)(f)
proceeding and that the Charkaoui #2 decision should apply in the
circumstances of this case, it is argued that the Immigration Division has made
a decision on the Charter engagement issue, and that it is therefore
moot for all intents and purposes.
[26]
Of
course, a Court is always left with the discretion to hear a case even if the
required tangible and concrete dispute has disappeared and the issues have
become academic (see Borowski v Canada (Attorney General), [1989] 1 SCR
342 at pp 358-ff [Borowski]). According to the Respondent, however, the
Court should not exercise its discretion to hear this moot judicial review,
because the question in issue is specific to the Applicant in this context and
is not one of public importance. The Respondent argues that the issue at bar
arises sparingly, and is not one that is of a short duration and escapes
review.
[27]
I
cannot agree with the Respondent. It is true that, at some level, the latest
decision of the Immigration Division does answer the Applicant’s claim that her
admissibility hearing engages her section 7 rights. However, the argument she
is making is at a more fundamental level. Her position is not only that the Charter
is applicable to her case and that she is entitled to some procedural
guarantees, which is the position that the special advocates seem to have taken
in requesting full disclosure in accordance with Charkaoui #2; what she
claims, in essence, is that the entire proceeding is in violation of the Charter
because there is no valid basis for relying on secret evidence in her admissibility
hearing.
[28]
The
main thesis of the Applicant is that reliance on secret evidence in the context
of an admissibility hearing before the Immigration Division breaches her right
to full answer and defence and infringes her s. 7 Charter rights. She
further contends that the introduction of a special advocate regime was
suggested as a possible cure to this Charter breach in Charkaoui #1,
because the Supreme Court accepted that the protection of Canada’s national security and related intelligence sources undoubtedly constitutes a
pressing and substantial objective. It is in that context that the Supreme
Court was prepared to accept that special advocates appointed to represent the
interests of a named person would strike a better balance between the protection
of sensitive information and the procedural rights of an individual; in other
words, a revamped security certificate regime with the introduction of special
advocates could be found to minimally impair a named person’s right. In the
absence of a security threat, argues the Applicant, a breach of her right to
full answer and defence cannot be saved under section 1, even if she is
represented in the closed proceedings by special advocates.
[29]
One
need not assess the strength of this argument, let alone rule on it, to
determine whether the May 12, 2011 decision of the Immigration Board completely
settles the argument put forward by the Applicant. It clearly does not. The
Board Member accepted that the Applicant’s s. 7 rights were engaged by virtue of
the fact that she could be removed to a country where it has been established,
she has a well-founded fear of persecution. The Board Member was also prepared
to accept that the denial of her right to know the entire case to meet infringes
the principles of fundamental justice, just as in the context of a security
certificate. She clearly did not go as far as saying that the use of secret
evidence in admissibility hearings irremediably vitiates her Charter
rights, in a manner that cannot be justified under s. 1, irrespective of the
procedural safeguards that are found in IRPA and the Rules and
that can be ordered by the Immigration Division.
[30]
It
cannot be said that the issue raised initially by the Applicant has become
academic, or that the concrete and tangible dispute between the parties has
disappeared. There is still an existing controversy between the Applicant and
the Respondent with respect to the fundamental question that lies at the core
of the Applicant’s thesis. The latest decision of the Immigration Division has
partially addressed the Applicant’s argument, but it has not drawn the full
consequences from the application of s. 7 that the Applicant would like it
to draw – i.e., that the whole inadmissibility proceeding violates her
constitutional rights given her particular circumstances, irrespective of any
procedural safeguards she may benefit from.
[31]
Before
bringing this discussion to a close, it is worth quoting the following excerpt
of Borowski, above, at p 358, where the Supreme Court articulates the
rationale underlying the concept of mootness:
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.
[32]
As
I have demonstrated, despite the decision reached by the Immigration Division
on May 12, 2011, there remains a real controversy between the parties. The
overall conformity of this admissibility hearing with the values enshrined in
the Charter is still very much at issue. Accordingly, mootness is not a
valid basis upon which this Court ought to or may decline to rule on this
application for judicial review.
b) Prematurity
[33]
Counsel
for the Applicant has argued since the inception of the proceedings before the
Immigration Division that these proceedings are in violation of s. 7 of the Charter
and must therefore be stopped immediately. The gist of this argument is best
captured by the following grounds raised in this application for leave and
judicial review:
2. The Supreme Court of Canada has held, in Charkaoui,
that reliance on undisclosed evidence in certificate proceedings in the Federal
Court contravened section 7 of the Charter, and that the specific
procedure was not justified under s. 1 of the Charter. Section 86 of the
current IRPA permits the Immigration Division to rely on the same powers the
Federal Court holds under s. 83 of the IRPA in the Applicant’s admissibility
hearing. The Court is asked to declare that section 86 contravenes the Charter
as the proceeding before the Immigration Division violates her rights under s.
7 of the Charter and is not justified under s. 1 of the Charter.
3. The Applicant’s section 7 Charter right to
security of the person is at stake in the admissibility hearing. The Supreme
Court has determined in Singh that the right to security of the person
is at stake in a refugee determination hearing. As the Board Member could
ultimately rule that the Applicant, who is a Convention refugee and permanent
resident, be ordered removed to her country of origin, her security is likewise
at stake in the hearing. Furthermore, for a victim of torture who has been
determined a Convention refugee, the threat of deportation is serious
state-imposed psychological stress.
4. The Applicant is not alleged to be a security
threat. There is no justification under s. 1 of the Charter, for refusal to
apply s. 7 of the Charter in the context of her admissibility hearing.
5. Sections 86 and 83 of the IRPA do not permit her
to engage in full answer and defence. The provision of a Special Advocate is
not a substitute for permitting full answer and defence. As the Applicant’s
right to security of the person is at stake, and limitation of her rights is
not made out under s. 1 of the Charter, there should be no derogation of her
right to full answer and defence.
[34]
Counsel
for the Applicant also initially argued that another important distinction
between an inadmissibility proceeding and a security certificate lies in the
fact that the adjudicator of an inadmissibility proceeding is not necessarily a
lawyer or law school graduate. The implication being, of course, that a ruling
by an Immigration Division member with no legal training would violate the
Applicant’s right to natural justice. Subsequently, counsel abandoned this
argument.
[35]
As
previously mentioned, the Board Member refused to rule on that broad submission
in her March 4, 2011 decision, preferring to leave it until she had heard all
the evidence and submissions with respect to the Applicant’s admissibility.
[36]
Counsel
for the Applicant forcefully submitted before this Court that there is no
reason to wait any longer before ruling on this issue. It was argued that the
Applicant has already been trapped in endless litigation for the past six years,
enduring the severe stress of such a situation, and that her psychological
well-being will be profoundly affected by a determination stripping her of
Canada’s protection, branding her as a “terrorist” and threatening her with
potential removal. It is also contended that the Applicant has been financially
drained of any means she had to pay for her legal fees, and that it would be a
waste of energy and resources to go through the admissibility proceedings if ever
the Board Member or this Court eventually agrees with the Applicant.
[37]
As
much as the Court sympathizes with the Applicant’s plight, and despite the skilful
arguments put forward by her counsel, there is no legal justification for this
Court to intervene at this stage of the proceedings before the Immigration
Division. I feel bound to agree with the Respondent that the Board’s decision
of March 4, 2011 is an interlocutory decision that it is not, as such,
reviewable on judicial review (see, for example: CB Powell Ltd v Canada
(Border Services Agency), 2010 FC 61 at para 31, [2011] 2 FCR 332).
[38]
The
Immigration Division undoubtedly possesses the jurisdiction both to determine
the Charter issues raised by the Applicant and to grant relief if it
determines that there has been an infringement to the Applicant’s rights. Not
only is it a court of competent jurisdiction pursuant to ss. 24(1) of the Charter,
but ss. 162(1) of IRPA grants each Division of the Board sole and
exclusive jurisdiction to hear and determine questions of law and fact,
including questions of jurisdiction. Moreover, Rule 47 of the Rules specifically
addresses the procedure for challenging the constitutional validity,
applicability or operability of any legislative provision under IRPA. The
Immigration Division is clearly empowered to deal with the Charter
arguments raised by the Applicant, in light of the seminal decisions of the
Supreme Court (see, Cuddy Chicks Ltd v Ontario (Labour Relations Board),
[1991] 2 S.C.R. 5; Douglas/Kwantlen Faculty Assn v Douglas College, [1990]
3 SCR 570 and Tétreault-Gadoury v Canada (Employment and Immigration
Commission), [1991] 2 S.C.R. 22). According to these decisions, administrative
tribunals endowed with the power to decide questions of law, have the authority
to resolve constitutional questions that are inextricably linked to matters
properly before them, unless such questions have been explicitly withdrawn from
their jurisdiction.
[39]
Recently
confronted with the same issue, I held that it is preferable for this
Court, as a matter of policy, to rule on Charter issues on the basis of
a full evidentiary record and of an informed decision by the administrative
tribunal tasked with the responsibility to make findings of fact and law (see, Stables
v Canada (Citizenship and Immigration), 2011 FC 1319). I reiterate what I
then said in this respect:
[27] The Supreme Court has held that tribunals with
expertise and authority to decide questions of law are in the best position to
hear and decide the constitutionality of their statutory provisions, and should
play a primary role in determining Charter issues within their jurisdiction.
Writing for the majority in Cuddy Chicks Ltd. v Ontario (Labour Relations
Board), [1991] 2 S.C.R. 5 at para 16, Justice LaForest captured the usefulness
and the value of a tribunal’s factual findings when considering a
constitutional question in the following terms:
It must be emphasized that the process of Charter
decision making is not confined to abstract ruminations on constitutional
theory. In the case of Charter matters which arise in a particular
regulatory context, the ability of the decision maker to analyze competing
policy concerns is critical…The informed view of the Board, as manifested in a
sensitivity to relevant facts and an ability to compile a cogent record, is
also of invaluable assistance.
(Quoted with approval by Mr. Justice Gonthier, for a
unanimous Court, in Nova Scotia (Workers’ Compensation Board) v Martin,
2003 SCC 54 at para 30, [2003] 2 S.C.R. 504).
[40]
This
approach is all the more appropriate in the context of an application for
judicial review, where the Court’s mandate is to assess the propriety of the
Immigration Division’s decision on the issues that it has decided. It would be
contrary to the rationale underlying judicial review for a court to pronounce
on an issue before the administrative decision-maker had the opportunity to
consider it.
[41]
The
March 4, 2011 decision of the Immigration Division is an interlocutory
decision, which does not purport to rule definitively either on the merits of
the ss. 34(1)(f) allegation nor on the issue of the Charter
applicability to those proceedings. Moreover, there are no special
circumstances warranting the immediate judicial review of this interlocutory
decision. It does not cause the Applicant immediate prejudice that is not
capable of being remedied by the administrative tribunal at some later juncture
or by this Court, on judicial review of the final decision.
[42]
Moreover,
it is a well established principle that Courts should refrain from deciding
constitutional issues when it is not strictly required in order to determine a
case (see, for example: Borowski, above, at pp 363-365; Moysa v
Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572 at pp 1579-1580; Danson v Ontario (Attorney
General), [1990]
2 SCR 1086 at pp 1099-1102). Not only should courts avoid ruling on
allegations of Charter infringements in a factual vacuum, but the
ultimate decision on the merit may well render an assessment of the Charter
issues unnecessary.
[43]
This
is precisely the approach that has been followed by this Court in the
comparable security certificate context. As pointed out by counsel for the
Respondent, this Court has refused to assess s. 7 Charter claims when
insufficient facts to properly assess them are not present. In Re Almrei,
2008 FC 1216, [2009] 3 FCR 497, Chief Justice Lutfy found that it would be
premature to rule on a motion challenging the requirement that communications
among special advocates and other persons must be judicially authorized for
lack of conformity with the Charter. Having quashed the security
certificate, Justice Mosley eventually found it unnecessary to consider the
issue (Re Almrei, 2009 FC 1263, [2011] FC 1241). In Re Harkat,
2010 FC 1242, 380 FTR 163, Justice Noël followed the same course of action
ruling on the Charter issues only after having decided on the merits of
the security certificate (Re Harkat, 2010 FC 1241, 380 FTR 61 [Re
Harkat]).
[44]
On
the basis of the foregoing, the Immigration Division Member was similarly
justified to reserve her decision on the broad Charter issue until she
had the necessary factual foundation to rule on it. She did not close the door
on that argument, but merely postponed its assessment until the entirety of the
process pursuant to which the Applicant’s admissibility had run its course.
Such an approach was entirely legitimate and sensible. Section 85.4 of IRPA
grants the Member some flexibility in the administration of the
non-disclosure regime, and it is only upon completion of the process mandated
by s. 83, that it will be possible to assess whether the Applicant’s right to a
fair hearing is compromised. To rule on the constitutionality of the scheme in
the abstract would allow an interlocutory motion to take on a life of its own. This
in turn may be totally unnecessary and unwarranted if the Immigration Division
dismisses the allegation advanced by the Minister on the merit.
[45]
Finally,
it is worth mentioning that the Applicant devotes most of her submissions to
the issue of section 7 applicability. The Applicant says very little as to why
the use of the non-disclosure regime pursuant to s. 86 of IRPA, in the
context of an admissibility hearing, would infringe the principles of
fundamental justice. Beyond stating boldly that the Supreme Court in Charkaoui
#2, above, accepted a limitation on the right to make full answer
and defence in the context of security certificates on the basis of a
security threat, counsel for the Applicant offers very little explanation as to
why the non-disclosure regime revamped by Parliament in the wake of that
decision, which has been found to be in compliance with the Charter in Re
Harkat, above, and in Re Jaballah, 2010 FC 79, [2011] 2 FCR 145, would
run afoul of the principles of fundamental justice in the context of
admissibility proceedings. Without prejudging the issue, the alternative
rationale suggested by the Respondent – that the need to protect sensitive
information is the pressing objective of s. 86 – cannot be ruled out as a
possible justification of any impairment to the right to full answer and
defence. The Respondent has not put forward any evidence pertaining to section
1 of the Charter, as no infringement of s. 7 has yet been found. This
Court therefore should refrain from ruling on this issue, even if the
declaration sought by the Applicant is limited to her specific fact situation.
[46]
This
application for judicial review is therefore dismissed.
[47]
As
agreed at the hearing, the parties are invited to submit serious questions of
general importance. They shall have fifteen (15) days to do so and an
additional five (5) days to comment on the questions submitted, if any.
[48]
As
for the Applicant’s request that the non-publication Order of my colleague
Justice MacTavish be maintained, it has not been opposed by the Respondent and
shall be granted. As a result, the following pages of the Certified Tribunal
Record shall not be published:
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1547-1551
1561-1584
1599-1600
1609-1620
1648
1654
1656
1699-1717
2061-2063
2078-2084
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2272-2275
2317-2323
2325
2396-2399
2666-2687
2688-2689
2698-2699
2703-2714
2724-2725
2728-2758
|
2766-2776
2805-2811
2830-2832
3197-3241
3366-3381
3788-4004
4340-4356
4369-4373
4751-4769
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JUDGMENT
THIS
COURT’S JUDGMENT is that this
application for judicial review is dismissed. The parties shall have fifteen
(15) days to submit questions of general importance for certification purposes,
and an additional five (5) days to comment on the questions submitted, if any.
THIS COURT ALSO
ORDERS THAT the following pages of the Certified Tribunal Record shall not
be published:
|
1547-1551
1561-1584
1599-1600
1609-1620
1648
1654
1656
1699-1717
2061-2063
2078-2084
|
2272-2275
2317-2323
2325
2396-2399
2666-2687
2688-2689
2698-2699
2703-2714
2724-2725
2728-2758
|
2766-2776
2805-2811
2830-2832
3197-3241
3366-3381
3788-4004
4340-4356
4369-4373
4751-4769
|
"Yves
de Montigny"
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