Date: 20080313
Docket: IMM-432-07
Citation: 2008 FC 341
Ottawa, Ontario, March 13,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SERGIO
ADRIAN BARON
MARIELA FERNANDA
RIQUELME
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Once again,
this Court must consider whether an application for judicial review of an
enforcement officer's decision not to defer an applicant's scheduled removal
from Canada becomes moot where the Court has stayed the removal and the
applicant has remained in Canada. This issue arises in the following context.
Factual Background
[2] The
applicants, who are citizens of Argentina, entered Canada on April 30, 2000.
On November 20, 2000, shortly after their visitor visas expired, they
filed a claim for refugee protection. In consequence, a conditional departure
order issued against each of them. On May 30, 2002, the applicants' claim
for refugee protection was refused and the conditional departure orders became
effective removal orders. After a number of events, including a failure to
report for a pre-removal interview, a negative pre-removal risk assessment and an
application on humanitarian and compassionate grounds, the applicants were served
with a direction to report for removal from Canada on January 18, 2007. That
date was initially extended to February 15, 2007. A second request for
deferral was then made by the applicants. In that request, they sought
deferral until a decision was made regarding their pending humanitarian and
compassionate application. The applicants’ request was refused by an
enforcement officer on January 29, 2007. That decision is challenged on this
application for judicial review.
[3] On
February 9, 2007, a judge of this Court stayed the applicants’ removal from Canada
until this application for judicial review was decided. On October 19, 2007,
leave to pursue this application for judicial review was granted and the
hearing was fixed for January 17, 2008.
[4] In
her further memorandum of argument, counsel for the respondent fairly referred
to recent jurisprudence of this Court where factually similar applications were
dismissed on the ground that they were moot. Counsel argued, however, that
this case was not moot.
[5] At
the hearing of the application for judicial review, the issue of mootness was
argued. Counsel for both parties argued that the application was not moot.
After hearing that argument, I advised counsel that I was not persuaded by
their oral submissions to depart from the reasoning in cases such as Higgins
v. Canada (Minister of Public Safety and Emergency Preparedness),
[2007] F.C.J. No. 516 (QL), Maruthalingam v. Canada (Minister of Public
Safety and Emergency Preparedness), [2007] F.C.J. No. 1079 (QL), Vu
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1431
(QL), Madani v. Canada (Minister of Public Safety and Emergency
Preparedness), [2007] F.C.J. No. 1519 (QL), and Kovacs v. Canada
(Minister of Public Safety & Emergency Preparedness), [2007] F.C.J. No.
1625 (QL). Counsel were offered, and accepted, the opportunity to make further
written submissions on the point.
[6] These
reasons reflect those written submissions.
The Submissions of the
Parties
[7] The
applicants rely upon the decision of this Court in Moumaev v. Canada
(Minister of Public Safety and Emergency Preparedness), [2007] F.C.J. No.
960 (QL). There, a stay was issued pending the review of a decision not to
defer removal. In rejecting the argument that the application for judicial
review was moot, the Court wrote at paragraph 25 that:
The respondent submitted that this matter was moot. I have
reviewed the order dated May 19, 2006, staying the removal of the applicant
made by Justice Beaudry. Justice Beaudry stayed the applicant's removal
"until the application for judicial review is determined by the Federal
Court". Accordingly, I must deal with the application for judicial review
otherwise, the order of Justice Beaudry would continue to be in force. The
matter therefore is not moot.
This decision is said to be on
point.
[8] It
is further argued that this submission is given added force by the position of
the Canada Border Services Agency (CBSA) that dismissal of an application for
judicial review on the ground of mootness terminates any interim stay of
removal, even where an appeal is taken to the Federal Court of Appeal. It is
submitted that, if the CBSA takes the position that a stay is terminated and
the applicants take the position, relying upon Moumaev, that the stay is
still operative, litigation will inevitably result. This litigation could be
avoided, it is said, if the Court determines the application for judicial
review on the merits.
[9] The
Minister argues that an application for judicial review of a decision not to
defer removal becomes moot only in two circumstances.
[10] First,
the application is said to become moot where the basis upon which deferral was
sought resolves before the hearing of the judicial review. An example of this
circumstance is where deferral is requested because an application for
permanent residence is outstanding and that application is determined before
the judicial review is heard. See, for example, Da Silva v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 1395 (QL).
Other examples are found in Kovacs, cited above, and Surujdeo v. Canada
(Minister of Public Safety and Emergency Preparedness), [2008] F.C.J. No.
94 (QL).
[11] Second,
the application is said to become moot where no stay of removal is
issued by the Court and the person seeking deferral is removed from Canada.
See, for example, Da Silva, cited above, and Tran v. Canada
(Minister of Public Safety and Emergency Preparedness), [2006] F.C.J. No. 1565
(QL).
[12] With
respect to whether the granting of a stay and the passing of the removal date
are, by themselves, determinative of mootness, the Minister argues that the
Court's decision in Higgins has been improperly expanded. Higgins
is said to have been decided on the narrow ground that the factual basis for
the requested deferral — a pending application for permanent residence — no
longer existed. Vu is said to have been decided upon a similarly narrow
ground. Madani and Maruthalingam, which are said to be factually
similar to the present case, are asserted to have been wrongly decided.
[13] In
this regard, the Minister submits that the conclusion that "a deferral
judicial review application is mooted merely by the passing of the scheduled removal
date arises from one particular characterization of the controversy raised by a
deferral judicial review application: that being whether an applicant should be
removed on the scheduled removal date." The Minister argues, however,
that the proper characterization of the nature of the controversy is whether an
applicant should be removed prior to the happening of the particular event that
forms the basis of the deferral request, such as, for example, the birth of a
child or the determination of an outstanding humanitarian and compassionate
application. If that is the true nature of the controversy, the Minister
submits that the application for judicial review only becomes moot when that
underlying event occurs.
[14] This
is the distinction that the Minister draws between cases such as Higgins
and Vu, on the one hand, and Madani and Maruthalingam, on
the other.
[15] In
the present case, the applicants' humanitarian and compassionate application,
which was the basis of the deferral request at issue, remains outstanding.
Therefore, the Minister argues that the application for judicial review is not
moot and an adversarial relationship continues to exist.
[16] The
Minister notes that there is no indication that a decision on the humanitarian
and compassionate application is imminent. Therefore, if this application is
dismissed for mootness, a further notice of removal may well be served on the
applicants. That is said to likely result in a new request for deferral being
made. Thus, the Minister says that it "would be helpful to the parties
for the Court to opine on the grounds upon which the pending [humanitarian and
compassionate] application would warrant a deferral and whether the Enforcement
Officer in the present case committed a reviewable error in refusing to defer
removal."
[17] Having
set out the submissions of the parties, it is helpful to review the development
of the Court’s jurisprudence concerning decisions of enforcement officers to
defer, or not defer, a person's removal from Canada.
Prior Jurisprudence
[18] One
of the early, and significant, decisions was that of Justice Pelletier, then sitting
in this Court, in Wang v. Canada (Minister of Citizenship and Immigration),
[2001] 3 F.C. 682 (T.D.). There, he noted that:
(i) It was then a fairly new development for motions for a stay
of removal to be brought in respect of a refusal of an enforcement officer to
defer removal. See: paragraph 7, 8.
(ii) In such a case, granting the stay gives the applicant the
relief which the enforcement officer has refused. In that sense, the
disposition of the motion for a stay of removal decides the underlying
application for judicial review (although the legal issues raised in the stay
and the judicial review application are different). See: paragraphs 8, 9.
[19] Justice
Pelletier then went on to attempt to describe the legal nature of an
enforcement officer's discretion to defer removal.
[20] Wang
was decided in the context of a motion to stay removal. A significant body of
jurisprudence followed where, on the hearing of the application for judicial
review, the Court attempted to articulate coherent principles with respect to
the nature and extent of the discretion to defer removal. Illustrative of this
jurisprudence is the decision of Justice McKeown in Benitez v. Canada
(Minister of Citizenship and Immigration) (2001), 214 F.T.R. 282 (T.D.).
[21] In
none of those cases was the issue of mootness raised. Indeed, in a number of
cases where the application for judicial review was allowed, the request to
defer removal was remitted for reconsideration by a different officer. See,
for example, Prasad v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 805 (QL), Betton v. Canada (Minister of Public
Safety and Emergency Preparedness), [2006] F.C.J. No. 1760 (QL), and Zambrano
v. Canada (Minister of Public Safety and Emergency Preparedness),
[2007] F.C.J. No. 982 (QL). In other cases, the Court simply set aside the
decision not to defer removal, seeing "no purpose in remitting the matter
for redetermination because the direction to report for removal has been
overtaken by events." See, for example, Samaroo v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1477 (QL) at
paragraph 9.
[22] Finally,
in decisions such as Higgins, the Court found the issues raised in the
application for judicial review to be moot.
[23] At
the same time, the exact boundaries of the discretion exercised by an
enforcement officer remained somewhat undefined. Given that the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), only directs that
removal take place as soon as is "reasonably practicable" (see
subsection 48(2) of the Act) and the unique circumstances that can arise on
removal, this is not surprising. Examples from the jurisprudence of those
circumstances range from the disruption of airline schedules, the absence of
travel documents, late-stage pregnancies, newborn children and a transitory
illness, on the one hand, to the existence of long-outstanding humanitarian and
compassionate applications and a risk to the health or safety of an individual
to be removed, on the other.
[24] The
direction found in the Act that removal take place as soon as “reasonably
practicable” originated in the Immigration Act, S.C. 1952, c. 42, s. 33(1).
The prior Immigration Act, R.S.C. 1927, c. 93, s. 33(5), directed simply
that persons be served with a copy of the deportation order and that they
“thereupon be deported.” Subsequent revisions in the Immigration Act,
S.C. 1976-77, c. 52, s. 50, and the Act have retained the concept of
“reasonably practicable.”
[25] A
review of the parliamentary debates surrounding the enactment of the 1952, 1976,
and 2001 legislation reveals no discussion or ministerial guidance to
Parliament as to what was meant by “reasonably practicable” or what
circumstances were intended to warrant the exercise of this discretion. One
can take from the introduction, in 1952, of the concept of removal as soon as
“reasonable practicable” that there was an intent to confer some discretion
with respect to the timing of removal.
[26] Telling
of the difficulty to define the bounds of this discretion is that I cannot find
any guidelines to enforcement officers in the Enforcement Manual about its
exercise. While the difficulty in preparing such guidelines is understandable,
the existence of such guidelines would promote consistent decision-making by
enforcement officers by setting out the basis upon which the discretion
conferred by subsection 48(2) of the Act should be exercised. Such guidelines
would also assist the Court by providing a "useful indicator of what
constitutes a reasonable interpretation of the power conferred by the
section." See: Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at paragraph 72.
[27] Having
briefly canvassed the development of the legislation and the jurisprudence, I
observe that one consideration has remained constant: the Act establishes a
series of mechanisms whereby a person's interests are assessed. Those
mechanisms include claims for protection, humanitarian and compassionate
applications to obtain exemptions from the requirements of the Act, appeals to
the Immigration Appeal Division of the Immigration and Refugee Board in respect
of removal orders, ministerial permission for persons who would otherwise be
inadmissible, and pre-removal risk assessments. A number of those mechanisms
can be invoked more than once. The last mechanism is the removal process. It
is difficult to discern, in that legislative scheme, any Parliamentary intent
that an enforcement officer is to revisit matters that have been already raised
and considered in the steps leading to removal. At a minimum, logic would
suggest that deferral must require some new, material development or some need
to avoid an unfair, arbitrary, or unintended result.
[28] I
now turn to consider what, as a matter of law, constitutes mootness.
The Doctrine of Mootness
[29] The
doctrine of mootness, and the related concept that “no useful purpose would be served”
by judicial review, reflect concerns for judicial economy and the types of
issues that are suitable for adjudication. See: D. Brown & J. Evans, Judicial
Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback
Publishing, 1998) at paragraph 3:3100.
[30] As
a matter of law, a matter is moot when, at the time of the court's decision,
there is no longer a live controversy that existed when the litigation was
instituted. In Borowski v. Canada (Attorney General),
[1989] 1 S.C.R. 342 at page 353, the Supreme Court of Canada explained the
doctrine in the following terms:
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. The cases do not always make it clear whether the term
"moot" applies to cases that do not present a concrete controversy or
whether the term applies only to such of those cases as the court declines to
hear. In the interest of clarity, I consider that a case is moot if it fails to
meet the "live controversy" test. A court may nonetheless elect to
address a moot issue if the circumstances warrant. [emphasis added]
[31] The
associated concept that "no useful purpose would be served" relates
to the efficacy of any relief the court might grant and not to the absence of
controversy or the loss of the litigation’s substratum. See: D. Brown &
J. Evans, cited above, at paragraph 3:3300.
[32] Having
set out the governing legal principles, I now apply those principles to the
evidence to decide whether this application is moot or whether any useful
purpose would be served by adjudicating upon the merits of the application.
Is the decision moot?
[33] The
applicants are subject to a valid removal order and were directed to report for
removal on January 18, 2007, on Air Canada flight #92. In order to issue the
direction to report, the CBSA was first required to make a number of travel
arrangements, including ensuring the availability of travel documents, an
itinerary and airline tickets, and to notify the airline of its requirement to
carry a foreign national from Canada.
[34] The
effect of the stay issued by the Court was to render those arrangements
nugatory when the date scheduled for removal passed and the applicants remained
in Canada. Whether the Court now decides that the decision of the enforcement
officer was reasonable or not, the applicants have received the deferral that
the officer refused. It is now an abstract question whether the enforcement
officer ought to have deferred removal.
[35] For
the following reasons, I can see no practical effect on the rights of the
parties if this case is decided on its merits. If the case is decided and
dismissed, the stay will come to an end, the CBSA can make new removal
arrangements, and the applicants can request deferral again. That same result
will occur if the application is allowed on the same basis as in Samaroo,
cited above. The validity of the removal order is not affected; the applicants
remain subject to removal.
[36] In
either event, the parties will only have the benefit of the Court's view of the
propriety of removal on stale-dated facts. However, the exercise of discretion
to defer removal is very fact-based. There is no way of knowing whether, since
the decision at issue was made, there have been intervening circumstances of
risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of
the Court is to the effect that the length of time that a humanitarian and
compassionate application has been outstanding is a relevant consideration when
considering requests for deferral. In the present case, the applicants'
humanitarian and compassionate application has now been outstanding for an
additional 12 months. A decision on stale facts will be of little use to the
parties if further removal arrangements are made.
[37] Even
if the application is allowed, remitted to a new officer for determination and
updated information about the applicants' circumstances is obtained, the
parties will be in the same position as if the Court had dismissed the
application, either on the merits or on the basis of mootness, and new removal
arrangements were made.
[38] Thus,
any decision on the merits of this application will not resolve any controversy
between the parties. The application is therefore moot and, further, no useful
purpose would be served by determining the application on its merits.
[39] Support
for this view is found in the recent decision of my colleague Justice Strayer
in Amsterdam v. Canada
(Minister of Citizenship and Immigration), 2008 FC 244. At
paragraph 11 of his reasons, Justice Strayer wrote that “in my view the matter
is moot because the Applicant has achieved the very goal which he said the
officer’s decision would deny him.”
[40] This
apparent futility of judicial review on the merits is illustrated by the case
of Zambrano, cited above, where:
• on June 29, 2006, the applicants were directed to report for
removal on July 18, 2006;
• on July 7, 2006, the applicants made a request for deferral of
their removal;
• on July 11, 2006, the applicants’ request for deferral was
refused;
• on July 12, 2006, the applicants commenced an application for
leave and for judicial review of the enforcement officer’s decision;
• on July 18, 2006, the applicants were granted a stay of removal;
and
• on July 10, 2007, the application for judicial review was
allowed and the applicants’ request for deferral was ordered to be redetermined
“as expeditiously as possible.”
[41] Thereafter:
• on July 12, 2007, without receiving updated submissions, an
enforcement officer redetermined the applicants’ deferral request of July 7,
2006, and again refused it, directing that the applicants report for removal on
August 8, 2007;
• on July 19, 2007, the applicants commenced an application for
leave and for judicial review of the enforcement officer’s decision, being
matter IMM-2931-07;
• on August 7, 2007, the applicants were granted a second stay
of removal; and
• on December 19, 2007, leave was granted and the application
for judicial review was scheduled for hearing on March 18, 2008.
[42] I
now turn to the submissions of the parties with respect to mootness. The most
compelling submission is that the proper characterization of the controversy
between the parties is whether the applicants should be removed prior to the
happening of the event that formed the basis of their deferral request. In
this case, that event was the pending decision on the applicants’ humanitarian
and compassionate application.
[43] With
respect, I believe that the Minister’s submission mischaracterizes the nature
of the decision that an enforcement officer is required to make.
[44] The
officer is charged with the duty of effecting removal as soon as is “reasonably
practicable.” Equally, subsection 48(2) of the Act requires the subject of an
enforceable removal order to leave Canada immediately. In the face of a
looming removal date, the officer is presented with a series of facts that are
said to warrant deferral at that point in time. The officer then decides
whether the facts are such to render removal impracticable, and thus relieve
the applicant of his or her obligation to leave immediately. For example, the
officer may be asked to defer removal because a humanitarian and compassionate
application has been outstanding for 18 months at the time of removal. The
officer is not asked to consider, and does not consider, whether removal would
be deferred if the application had instead been outstanding for 30 months.
[45] For
that reason, I find that the proper characterization of the dispute is whether
an applicant should be removed, and is obliged to leave, on the scheduled
removal date.
[46] I
also, respectfully, reject the Minister’s characterization of the basis for the
Court's decisions in Higgins and Vu.
[47] In
Higgins, deferral was requested on the basis of a pending sponsored
inland application for permanent residence and the impact the applicant's
removal would have on his partner's nine-year-old son, who was said to suffer
from "behavioral and social disabilities." The Court found the
application to be moot on the following basis:
18. It is beyond question that: first, the removal arrangements
made by the Respondent for the Applicant are no longer relevant; secondly, no
removal arrangements for the Applicant are currently in place; and finally,
substantially more evidence is now available in relation to any disability that
the Applicant's spouse's nine (9) or ten (10) year old son might suffer from,
his needs in relation to any such disability and any role that the Applicant
plays and is capable of continuing to play in relation to that son. Further, an
application for landing of the Applicant from within Canada on
humanitarian and compassionate grounds is before immigration authorities and
provides a substantially more appropriate platform from which to determine the
best interests of the boy than does a request for deferral where the issue for
consideration is whether removal at a particular arranged time is
"reasonably practicable". Further, it is beyond question that, if the
Respondent remains determined to remove the Applicant before his humanitarian
and compassionate grounds application is determined, it would be open to the
Applicant to request a new deferral of removal, based on all of the current
circumstances and evidence and, if that request is denied, a further
application for leave and for judicial review would be open to him together
with a further motion before this Court seeking a stay of removal pending the
final determination of that new application for leave and for judicial review.
[footnote omitted]
[48] The
finding of mootness was not based at all upon the fact that the application for
permanent residence had been rejected.
[49] Similarly,
in Vu, Justice Gibson found the application to be moot for substantially
the same reasons as he had given in Higgins. Those, essentially, were
that the old removal arrangements were spent, and, if a new removal date were
to be scheduled, a new request for deferral could be made based upon the then
existing circumstances.
[50] As
for the applicants' reliance upon Moumaev, I, again respectfully, do not
accept that the Court is obliged to consider the application on the merits,
failing which the interim order will remain in effect. If the application is
dismissed because it is moot, that finding will be embodied in a final judgment
which will terminate the interim order that stayed removal.
[51] The
position of the CBSA, also relied upon by the applicants, that a dismissal for
mootness terminates any stay, even where an appeal is taken, simply reflects
the fact that an appeal to the Federal Court of Appeal does not, of itself,
affect the validity of this Court's order. See: Rule 398 of the Federal
Courts Rules, SOR/98-106.
Judicial Comity
[52] A
judge of this Court, as a matter of judicial comity, should follow a prior
decision made by another judge of this Court unless satisfied that: (a)
subsequent decisions have affected the validity of the prior decision; (b) the
prior decision failed to consider some binding precedent or relevant statute;
or (c) the prior decision was unconsidered; that is, made without an
opportunity to fully consult authority. If any of those circumstances are
found to exist, a judge may depart from the prior decision, provided that clear
reasons are given for the departure and, in the immigration context, an
opportunity to settle the law is afforded to the Federal Court of Appeal by way
of a certified question. See: Re Hansard Spruce Mills Ltd., [1954] 4
D.L.R. 590 at page 591 (B.C.C.A.), and Ziyadah v. Canada
(Minister of Citizenship and Immigration), [1999] 4 F.C. 152 (T.D.).
[53] I
am satisfied that the prior decisions of this Court, set out at paragraphs 5
and 39 above, did not ignore any relevant authority or statutory provision.
Such judgments were fully considered. Judicial comity provides a further basis
for finding this application to be moot.
The Exercise of Discretion
[54] The
second stage of the two-step analysis described in Borowski requires the
Court to consider whether it should exercise discretion to hear the case,
notwithstanding that it is moot.
[55] In Borowski, the
Supreme Court of Canada established three factors that a court should consider
when determining whether to exercise its discretion: first, whether an adversarial
relationship between the parties still exists; second, whether the expenditure
of judicial resources is justified; and third, the need for the court to
demonstrate a measure of awareness of its proper law-making function. Put
another way, the third factor requires the court to consider if, in the absence
of a live dispute, a decision on the matter would be an intrusion into the
functions of the legislative branch of government.
[56] Having regard to these factors, I accept that an
adversarial relationship still exists between the parties. However, this case
raises no novel question of law with respect to the scope of an enforcement
officer’s discretion and, as set out above, I see no practical effect on the
rights of the parties if I decide this case. Thus, the interests of judicial
economy militate against the exercise of discretion. Finally, for the reasons
set out above, courts must be cautious of answering questions of law in the absence
of a live dispute.
[57] For these reasons, I decline to exercise my discretion to
decide this application.
Mischief
[58] As discussed with counsel, I acknowledge that the result of
the reasoning in this case, and cases such as Higgins, raises the possibility
that most applications for judicial review of decisions refusing to defer
removal will be rendered moot once the scheduled removal date passes and the
person remains in Canada. This carries a number of undesirable consequences,
including:
(i) Motions for stays of removal are
often brought on short notice and a decision must be rendered almost
immediately. This means that the parties, particularly the Minister, may not
be able to put a full record before the Court for consideration. As well, the
Court may not have time to give the issues raised on the motion the
consideration that it would wish. Yet, that is the basis upon which the
decision that effectively decides the application must be made.
(ii)
If final decisions are not rendered on
the merits of applications for judicial review, the jurisprudence will not
fully develop with respect to the scope of an enforcement officer's discretion.
(iii) Most importantly, significant time
will elapse between the aborted removal date and the date that the application
for judicial review is heard. At that time, the application is likely to be
found to be moot. In the present case, one year elapsed. During this period,
the Minister's ability to make removal arrangements is suspended and an
applicant's situation remains uncertain. This is undesirable at the final stage
in the enforcement process, at least from the Minister’s point of view.
[59] There are some answers to these concerns.
[60] First, the Court must continue to be mindful of the limited
nature of an enforcement officer's discretion and where that discretion falls
within the scheme of the entire Act.
[61] Second, the existence of ministerial guidelines would
assist enforcement officers, promote consistent decision-making, and give
greater guidance to the parties (and the Court) as to how the discretion is to
be exercised. In the absence of prior ministerial guidance in the
Parliamentary debates or otherwise, logic and consistency would suggest that
the guidelines would take into account the prior jurisprudence of this Court.
[62] Third, in cases where issues of law are raised, the Court
may choose to exercise its discretion to hear the application for judicial
review so as to develop the jurisprudence.
[63] Fourth, if, as a matter of law, it is the passage of the
removal date that renders the application moot, most, if not all, applications
will be moot by the time the application for leave is perfected. If so, judges
may consider it to be appropriate to refuse leave on the ground of mootness.
This would avoid the delay that otherwise results if the matter proceeds to
hearing and would, in my view, be consistent with the fact that issues regarding
removal arise at the last stage of a complex legislative scheme.
[64] The Minister may argue that this creates the potential for
a series of removal arrangements, deferral requests, and stay motions. I agree
that this would be undesirable. However, that is the situation that currently prevails
where, after a much greater period of time, applications for judicial review of
deferral decisions are either dismissed or allowed. (See: the history recited
above at paragraphs 40 and 41). A quicker end to the proceeding makes it less
likely that there will be any material change in circumstances if new removal
arrangements are made.
[65] Further, the potential for abuse will be mitigated significantly
by the Court's continued discipline when considering stay requests and, where a
stay is granted, by careful consideration by the CBSA, before new removal
arrangements are made, of the serious issue identified by the Court. It should
be remembered that, for a stay to be granted, the Court will have identified at
least one issue that carries with it the likelihood of success on the
underlying application. It is not enough for the Court to simply find that an
issue is not frivolous or vexatious. See: Wang, cited above. Parenthetically,
I reject the suggestion that the Court will refuse stays because no issue can
have a likelihood of success if the application is to become moot after the
removal date passes. When faced with a request for a stay, the Court will be
obliged to consider the relevant facts relating to the propriety of the
underlying application to see if a serious issue arises. The second step of
the Borowski analysis requires the Court to exercise the discretion
whether to hear a moot case. A judge hearing a motion for a stay where a
serious issue arises cannot assume that the judge granting leave or hearing the
application for judicial review will not exercise that discretion.
[66] Still further, disposal of these applications at the leave
stage will avoid the subsequent expenditure of resources by the parties and the
Court.
[67] Finally,
I respectfully endorse the suggestion of Justice Strayer at paragraph 7 of his
reasons in Amsterdam, cited above, that consideration be given in these
cases to confining the duration of a stay of removal to the lesser of: the
time an applicant demonstrates that he requires in Canada before removal, and
the time required for this Court to decide the underlying application for
judicial review.
[68] To
be clear, I adopt the reasoning of the Court in D’Souza v. Canada
(Minister of Public Safety and Emergency Preparedness), [2007]
F.C.J. No. 1702 (QL), that this Court cannot issue “free standing stays.”
Stays must tied to a leave or judicial review proceeding to which the stay is
ancillary. See: D’Souza at paragraph 40.
[69] This
does not mean, however, that the Court cannot grant an order staying removal for
the duration of the underlying application in this Court and providing that the
stay will also cease if, before that time, the impediment to removal ceases to
exist. Logic would suggest that, once the impediment to removal lapses, the
applicant should then again become liable to removal.
Conclusion
and Certification
[70] For these reasons, the application for judicial review is
dismissed.
[71] The Minister posed certification of the following question:
Where
an applicant has filed an application for leave and judicial review challenging
a refusal to defer removal pending a decision on an outstanding application for
landing, does the fact that a decision on the underlying application for
landing remains outstanding at the date the Court considers the application for
judicial review maintain a "live controversy" between the parties, or
is the matter mooted merely by the passing of the scheduled removal date?
[72] With minor amendments, the question will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The
application for judicial review is dismissed on the ground that it is moot.
2. The
following question is certified:
Where an applicant has filed an application for leave and
judicial review challenging a refusal to defer removal pending a decision on an
outstanding application for landing, and a stay of removal is granted so that
the person is not removed from Canada, does the fact that a decision on the
underlying application for landing remains outstanding at the date the Court
considers the application for judicial review maintain a "live
controversy" between the parties, or is the matter rendered moot by the
passing of the scheduled removal date?
“Eleanor R. Dawson”
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