Docket: IMM-415-15
Citation:
2015 FC 931
Ottawa, Ontario, September 28, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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ALI ALVIN
FAROON
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
& IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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AMENDED JUDGMENT AND REASONS
[1]
The applicant, Ali Alvin Faroon, seeks judicial
review pursuant to section 72 of the Immigration and Refugee Protection Act
[Act] of the decision of the Minister’s delegate based on the Report of an
Inland Enforcement Officer of the Canada Border Services Agency (CBSA) (the
Officer) to refer the applicant to an admissibility hearing pursuant to
subsection 44(2) of the Act. The applicant submits that the delay in the
decision to refer the applicant to the admissibility hearing is an abuse of
process and a breach of the applicant’s section 7 rights under the Canadian
Charter of Rights and Freedoms [Charter] and, as a result, the
proceedings should be permanently stayed.
[2]
For the reasons that follow, the application is
dismissed. I do not find an abuse of process in the present circumstances.
Background
[3]
The applicant, a citizen of Fiji, arrived in
Canada in 1987 at the age of 15. He became a permanent resident of Canada on
May 9, 1995.
[4]
On December 2, 1999, the applicant was convicted
of living off the avails of an underage prostitute, in contravention of
subsection 212(2) of the Criminal Code, RSC 1985, c C-46.
[5]
On May 23, 2003, the applicant was convicted of
assault causing bodily harm, in contravention of paragraph 267(b) of the Criminal
Code.
[6]
Both offences are indictable offences punishable
by up to 10 years imprisonment.
[7]
On June 28, 2013, the Officer sent the applicant
a letter advising him that he may be inadmissible to Canada (initial letter).
The applicant was given the opportunity to provide submissions and did so on
July 30, 2013. His submissions recounted his background in Canada, raised
potential Humanitarian and Compassionate (H&C) considerations and enclosed
letters of support.
[8]
On November 29, 2013, in response to the
applicant’s inquiry about the status of his case, the Officer indicated that
she had completed her review of the file and that she had forwarded it to her
supervisor on October 15, 2013.
[9]
The Officer’s report, dated October 15, 2013,
which is included in the record, states that in the Officer’s opinion, the
applicant is inadmissible on the grounds of serious criminality pursuant to
paragraph 36(1)(a) of the Act due to convictions in Canada for criminal
offences punishable by a maximum term of imprisonment of at least 10 years.
[10]
The applicant made several inquiries asking when
a decision would be made (on February 5, April 5, July 14 and August 1, 2014).
The Officer replied on August 25, 2014, indicating that the Minister’s delegate
had returned the file and that a decision would be made within one week of
receiving any new submissions. The applicant was given until September 10, 2014
to make new submissions and did so, again noting H&C considerations and
enclosing letters from family and photographs.
[11]
On October 1 and 15, 2014, the applicant again
inquired whether a decision had been rendered.
[12]
In an undated “Section 44(1) and 55 Highlights – Inland Cases” report, the Officer noted in the recommendation section that it
does not appear, apart from the applicant’s two children and common law
partner, that he has established himself in Canada and added that “[d]ue to the change in IRPA concerning
Appeal Rights, I recommend client be issued a Stern Warning Letter and the case
referred to Investigations for follow up on possible organized crime.” The Manager’s notation, dated September 23, 2014, indicates the
Manager’s disagreement: “Do not
concur with this recommendation – this was previously sent back … for
additional investigation.”
[13]
Another “Section 44(1) and 55 Highlights – Inland Cases” Report, by another Officer, dated July 18, 2014, included a
recommendation that the applicant be convoked to an admissibility hearing and
be issued a Deportation Order based on paragraphs 36(1)(a) and 37(1)(a), and
set out several reasons, including the convictions for indictable offences and
that “Ali is known to associate
with gang members/associates in the lower mainland.” The Manager’s notation, dated September 23, 2014 indicates that the
file was reviewed in its entirety, including the additional submissions, and
recommends an admissibility hearing.
[14]
On November 12, 2014, the Minister of Public
Safety and Emergency Preparedness brought an application pursuant to subsection
44(2) of the Act asking the Immigration Division of the Immigration and Refugee
Board to declare the applicant inadmissible under paragraph 36(1)(a) of the
Act.
[15]
On November 25, 2014, the Immigration and
Refugee Board issued a Notice to Appear for Admissibility Hearing (notice of
referral) on January 19, 2015 based on the Report of the Minister’s delegate,
which attached the Officer’s October 15, 2013 report.
[16]
The admissibility hearing commenced on January
19, 2015. The hearing was adjourned to allow the applicant to apply to this
Court for leave and judicial review relating to allegations of abuse of process
arising from the delay in pursuing the admissibility hearing.
The
Issues
[17]
The applicant argues that the delay in bringing
the application for an admissibility hearing from June 2013, when he was first
made aware that he may be inadmissible to Canada, until November 2014, when the
notice of referral was issued, considered in the context of his convictions
that date back 12 and 15 years, is an inordinate delay that has caused him prejudice.
He argues that it is an abuse of process to continue with the admissibility
hearing and, therefore, a permanent stay of proceedings is justified. The
applicant also argues, for the same reasons, that the referral for an
admissibility hearing was made in a manner inconsistent with his rights
pursuant to section 7 of the Charter.
[18]
The issues to be addressed are, therefore:
(1) Whether there has been a delay amounting to an abuse of process
which should result in a permanent stay of proceedings.
(2) Whether the referral for the admissibility hearing was made in a
manner inconsistent with section 7 of the Charter and should result in a
permanent stay of proceedings.
The
Applicant’s Submissions
[19]
The applicant relies extensively on Fabbiano
v Canada (Minister of Public Safety and Emergency Preparedness), 2014 FC
1219 [Fabbiano], where a stay of proceedings was granted for abuse of
process, and submits that, given the principles it sets out governing abuse of
process and the analogous facts to the present case, a stay of proceedings
should result for the applicant.
[20]
The applicant notes that in Fabbiano, the
Court stated that the “test is whether the delay caused
‘actual prejudice of such magnitude that the public’s sense of decency and
fairness is affected’” (at para 10). The applicant submits that the
delay he experienced has caused him such prejudice and that the public’s sense
of decency and fairness would be offended by proceeding with the admissibility
hearing.
[21]
The applicant submits that he was prejudiced by
the 18 month lapse of time between when he received the letter advising that he
may be inadmissible to Canada and when he received the notice of referral. He
notes that he made repeated inquiries about the progress of the admissibility
proceedings and the 18 month period of uncertainty had a prejudicial impact on
him psychologically. The 12 year period since the date of his last conviction,
given that no action was taken to address his potential inadmissibility until
June 2013, adds to the prejudice.
[22]
The applicant argues that the entire 12 year
period should be considered, relying on Ratzlaff v British Columbia (Medical
Services Commission), 17 BCLR (3d) 336 at para 20, [1996] BCJ No 36 [Ratzlaff],
where the British Columbia Court of Appeal noted that “[w]here
the position of the party at risk … is that the delay is such as to amount to
an abuse of power, I think the whole of that period of delay must be looked at
in determining whether it is such as to amount to oppression or an abuse of
power.”
[23]
The applicant notes that in Fabbiano, at
para 8, the Court found that a remedy may be provided where proceedings have
become oppressive, including where a person carries on their life reasonably
believing that no further action will be taken against them. The applicant
submits that this is his situation; he believed that no further action would be
taken against him in the 12 years between his criminal convictions and the
Officer’s referral report.
[24]
The applicant states that over these years he
established roots, particularly because of his children. He notes that he has
been in Canada since 1987 and submits that allowing a person to establish their
livelihood and family only to later face the prospect of removal is oppressive
and unfair.
[25]
The applicant points out that no explanation has
been provided for the delay, the facts are not complicated or in dispute, and
the delay cannot be attributed in any way to him. These factors must be
considered in assessing the impact of the delay (Blencoe v British Columbia
(Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 [Blencoe].
[26]
The applicant also argues that there are other
similarities with the facts in Fabbiano, including that the information
relied on to support his inadmissibility is over 12 years old. In Fabbiano,
the information relied upon was approximately seven years old and the Court
found prejudice, given that Mr Fabbiano’s circumstances had changed in that
period. Further, like the facts in Fabbiano, because no action was taken
for many years, officials were apparently not concerned about any risk posed by
the applicant.
[27]
In addition, in Fabbiano the Court found
that the strict provisions of the Act relating to when H&C factors may be
considered, combined with a delay in proceedings, impaired Mr Fabbiano’s
ability to present further submissions.
[28]
The applicant adds that he has been prejudiced
by not knowing the case he had to meet. He relies on Hernandez v Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 725 at para
43, [2007] FCJ No 965, where the Court found that the section 44 report should
be set aside because a relevant document had been provided to the Minister but
not disclosed to the applicant. He notes that several of the reports of
officers included in the record refer to his association with gang
members/associates, yet this information was not disclosed to him to permit him
to determine who these alleged associates are or to dispute the allegation. He
argues that this reference tainted or influenced the subsection 44(2) report.
[29]
The applicant points out that the Officer
initially recommended a warning letter, which would be an alternative to the
admissibility report, due to the consequences of an inadmissibility finding,
from which there is no appeal. He argues that there is no explanation for why this
recommendation was not supported given it was made by the Officer most familiar
with his case.
[30]
The applicant also argues that he served his
sentence for the two convictions in 1999 and 2003 and the consequences that may
now arise under the Act are tantamount to double jeopardy.
[31]
In summary, the applicant submits that the
inordinate delay in proceeding against him offends the public’s sense of
fairness and will bring the administration of justice into disrepute.
[32]
More generally, the applicant submits that the
impact of section 44 proceedings raise issues of human rights with limited or
no remedies for those affected.
The Respondent’s Submissions
[33]
The respondent notes that determinations of
whether there is an abuse of process depend on the specific facts and the
context (Fabbiano at para 10, Blencoe at para 122) and moreover,
such cases are “extremely rare” (Canada
(Minister of Citizenship and Immigration) v Omelebele, 2015 FC 305 at para
23).
[34]
The respondent submits that although the
principles set out in Fabbiano are not in dispute, the facts, which led
the Court to find an abuse of process and to stay the admissibility
proceedings, are quite different.
[35]
In Fabbiano, the applicant moved to
Canada when he was six years old and had lived in Canada for 51 years. The
admissibility hearing was related to Mr Fabbiano’s alleged involvement in
organized crime in the 1990s. Although Mr Fabbiano had one conviction, there
was a lack of evidence about the organized crime allegations. Mr Fabbiano was
advised in 2006 that he might be inadmissible to Canada and he made submissions
at that time, but heard nothing more until 2013 when he was given notice of his
hearing. The Court noted that there were many H&C considerations at play,
including his long establishment in Canada, steady employment, and medical
issues, but he had no opportunity to make updated submissions.
[36]
The respondent notes the difference with the
facts in the present case: the applicant’s two convictions are for serious
crimes and are not in dispute; the applicant was advised in 2013 that he may be
inadmissible; he made submissions at that time and made submissions again in
September 2014 prior to the subsection 44(2) report; the notice of referral was
provided 18 months after the initial letter; and, the Officer’s report reflects
consideration of the applicant’s submissions.
[37]
The respondent acknowledges that there was a
considerable delay between the convictions and the notice of referral. However,
the 18 month delay is not comparable to the almost seven year delay in Fabbiano
and to Mr Fabbiano’s inability to make recent submissions.
[38]
The respondent submits that delay without more
does not constitute an abuse of process. The delay must be so oppressive as to
taint the proceedings. To find an abuse of process, it must be established that
an unreasonable delay was caused by the respondent and that the delay has
caused prejudice to the applicant (Blencoe at paras 101, 121). In this
case, the applicant has not provided any evidence of prejudice, only an
assertion that his life has been affected by uncertainty since being advised
that he may be inadmissible in 2013. Even if the applicant were prejudiced by
such uncertainty, the respondent argues that the applicant has not shown that
the delay was so excessive as to constitute an abuse of process.
[39]
The respondent highlights that the referral for
an admissibility hearing is based on the applicant’s two convictions and on
paragraph 36(1)(a) of the Act for serious criminality, and not for organized
criminality. Therefore, the applicant’s allegations about not knowing the case
he has to meet are not relevant. The allegations regarding possible gang
affiliation are not part of the inadmissibility report. Moreover, the Officers’
reports and the notations of the Manager demonstrate that the file was reviewed
in this period resulting in the referral proceeding on the basis of paragraph
36(1)(a) only.
[40]
The respondent notes that the applicant will be
given the opportunity to respond to the issues raised in the subsection 44(2)
report at the admissibility hearing. The applicant has not shown that his
admissibility hearing will be compromised in any way by the 18 month delay in
making the referral. He will have an opportunity to address the grounds of his
inadmissibility. The respondent submits that an admissibility hearing is not a
“rubber stamp” process as suggested by the applicant, and the Immigration and
Refugee Board will consider the report and the applicant’s submissions.
The Principles from the Jurisprudence
[41]
As noted above, the applicant relies extensively
on the recent decision of this Court in Fabbiano, where Justice O’Reilly
canvassed the relevant jurisprudence, provided a concise summary of the
principles and proposed an approach to be applied.
[42]
It is helpful to set out the key passages in Fabbiano
and elaborate on some of the principles with reference to the earlier
jurisprudence.
[43]
Justice O’Reilly explained the concept of abuse
of process, noting that unacceptable delay which causes significant prejudice
is one situation that could lead to such a finding, and where the proceedings
have become oppressive for other reasons is another possible situation. He
highlighted that a stay of proceedings for abuse of process is an extraordinary
remedy, noted the test that must be met, explained the relevant factors to be
considered and summarised the three step approach to determine whether a stay
should be imposed. The relevant passages are at paras 8-10:
[8] Abuse of process is a common law
principle permitting courts to stop proceedings that have become unfair or
oppressive. This includes situations where there has been an unacceptable delay
resulting in significant prejudice (Blencoe v British Columbia (Human
Rights Commission), [2000] 2 S.C.R. 307, at para 101). A key question is
whether the delay “impairs a party’s ability to answer the complaint” (at para
102). Alternatively, a court can provide a remedy where the proceedings have
become oppressive for other reasons including, for example, where the person
carried on with his life reasonably believing that no further action would be
taken against him (Ratzclaff v British Columbia (Medical Services
Commission) (1996), BCJ No 36 (BCCA) (QL), at para 23).
[9] A stay of proceedings for an
abuse of process is an extraordinary remedy reserved for the clearest cases of
prejudice. To grant that remedy, “the court must be satisfied that, ‘the damage
to the public interest in the fairness of the administrative process should the
proceeding go ahead would exceed the harm to the public interest in the enforcement
of the legislation if the proceedings were halted’” (Blencoe at para
120, citing Brown and Evans, Judicial Review of Administrative Action in
Canada (Toronto: Canvasback, 1998) at 9-68).
[10] Whether delay justifies a stay of
proceedings depends on all of the circumstances, including the purpose and
nature of the case, its complexity, the facts and issues involved, and whether
the affected person contributed to or waived the delay (Blencoe, at para
122). The test is whether the delay caused “actual prejudice of such magnitude
that the public’s sense of decency and fairness is affected” (at para 133).
There are three steps in considering whether a stay should be imposed:
1. There must be
prejudice to the person’s right to a fair trial or the integrity of the justice
system.
2. There must be no adequate
alternative remedy.
3. If there is uncertainty
after steps 1 and 2, the court must balance the interests favouring a stay (ego,
denouncing misconduct or preserving the integrity of the justice system) against
the public interest in having a decision on the merits (R v Babos,
2014 SCC 16, at para 32).
[44]
The leading case, from which many of the
principles above are derived, is Blencoe. In Blencoe, the Supreme
Court of Canada noted that delay on its own will not be sufficient to warrant a
stay of proceedings:
[101] In my view, there are appropriate
remedies available in the administrative law context to deal with state-caused
delay in human rights proceedings. However, delay, without more, will not
warrant a stay of proceedings as an abuse of process at common law. Staying
proceedings for the mere passage of time would be tantamount to imposing a
judicially created limitation period (see: R. v. L. (W.K.), [1991] 1
S.C.R. 1091, at p. 1100; Akthar v. Canada (Minister of Employment and
Immigration), [1991] 3 F.C. 32 (C.A.). In the administrative law context,
there must be proof of significant prejudice which results from an unacceptable
delay.
[102] There is no doubt that the
principles of natural justice and the duty of fairness are part of every
administrative proceeding. Where delay impairs a party's ability to answer the
complaint against him or her, because, for example, memories have faded,
essential witnesses have died or are unavailable, or evidence has been lost,
then administrative delay may be invoked to impugn the validity of the
administrative proceedings and provide a remedy (D. J. M. Brown and J. M.
Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p.
9-67; W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at pp.
435-36). It is thus accepted that the principles of natural justice and the
duty of fairness include the right to a fair hearing and that undue delay in
the processing of an administrative proceeding that impairs the fairness of the
hearing can be remedied (see, for example, J. M. Evans, H. N. Janisch and D. J.
Mullan, Administrative Law: Cases, Text, and Materials (4th ed. 1995), at p.
256; Wade and Forsyth, supra, at pp. 435-36; Nisbett, supra, at
p. 756; Canadian Airlines, supra; Ford Motor Co. of Canada v. Ontario
(Human Rights Commission) (1995), 24 C.H.R.R. D/464 (Ont. Div. Ct.); Freedman
v. College of Physicians & Surgeons (New Brunswick) (1996), 41 Admin.
L.R. (2d) 196 (N.B.Q.B.)).
[45]
The Court noted at para 115 that an unacceptable
delay that may amount to an abuse of process is not limited to situations where
the delay affects a fair hearing, and could include a delay that “has directly caused significant
psychological harm to a person, or attached a stigma to a person's reputation,
such that the human rights system would be brought into disrepute, such
prejudice may be sufficient to constitute an abuse of process.” The Court noted, however, that “few lengthy delays will meet this threshold.”
[46]
At para 120, the Court set out the test that to
find an abuse of process, the court must be satisfied that: “the damage to the public interest in the fairness of the
administrative process should the proceeding go ahead would exceed the harm to
the public interest in the enforcement of the legislation if the proceedings
were halted” and added that such cases will be rare.
[47]
The Court noted that a contextual analysis is
required to determine whether the delay is inordinate at para 122:
[122] The determination of whether a delay
has become inordinate depends on the nature of the case and its complexity, the
facts and issues, the purpose and nature of the proceedings, whether the
respondent contributed to the delay or waived the delay, and other
circumstances of the case. As previously mentioned, the determination of
whether a delay is inordinate is not based on the length of the delay alone,
but on contextual factors, including the nature of the various rights at stake
in the proceedings, in the attempt to determine whether the community's sense
of fairness would be offended by the delay.
[48]
The Court reiterated, at para 133, that more
than delay is required to find an abuse of process; the delay must cause real
prejudice to the extent that it affects the public’s sense of decency and
fairness.
[49]
The ultimate three part test or approach
summarised in Fabbiano, was set out in R v
Babos, 2014 SCC 16, at para 32, [2014] 1 S.C.R. 309 [Babos]
in the context of whether a stay of a criminal
prosecution should be granted, although the Supreme Court of Canada’s guidance
extends beyond that context, with the necessary modifications.
[50]
In Babos, the accused alleged misconduct
by the police in the investigation and by the Crown in the prosecution of the
charges. The trial judge imposed a stay. On appeal, the stay was set aside. The
Supreme Court of Canada agreed, noting that a stay is a drastic remedy in
criminal proceedings (at para 30). The Court noted that two categories of cases
may lead to an abuse of process and a stay of criminal proceedings: first, where state conduct compromises the fairness of an accused’s
trial; and second, where state conduct creates no threat to trial fairness but
risks undermining the integrity of the judicial process (at para 31). The Court
then set out the test at para 32:
[32] The test used to determine whether
a stay of proceedings is warranted is the same for both categories and consists
of three requirements:
(1) There must be
prejudice to the accused’s right to a fair trial or the integrity of the
justice system that “will be manifested, perpetuated or aggravated through the
conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no
alternative remedy capable of redressing the prejudice; and
(3) Where there is
still uncertainty over whether a stay is warranted after steps (1) and (2), the
court is required to balance the interests in favour of granting a stay, such
as denouncing misconduct and preserving the integrity of the justice system,
against “the interest that society has in having a final decision on the
merits” (ibid., at para. 57).
There is no Abuse of Process
[51]
I appreciate that the consequences to the
applicant arising from an admissibility hearing are significant. Counsel for
the applicant made submissions regarding the impact of recent changes to the
Act on persons such as the applicant and argued that these changes are
unjustified, do not permit consideration of countervailing factors, and, more
generally, do not reflect Canada’s values. However, the role of the Court is to
apply the law to the facts of the case before it. There are other fora to
express concerns about the law and policy of the Government.
[52]
The delay, when looked at from the date of the
applicant’s last conviction to the subsection 44(2) report, is extensive and is
unexplained. As the applicant noted, if the CBSA had serious concerns about
him, it could have acted much earlier. I acknowledge that the impact on the
applicant, who has been in Canada for over 25 years, and on his family may be
harsh. However, I do not find that this is one of the rare or clearest of cases
where an abuse of process has been established and where a stay of proceedings
would be justified.
[53]
Adopting the same approach as Justice O’Reilly
in Fabbiano, I have considered the following: the basis for the
applicant’s claim of abuse of process, the purpose and nature of the
applicant’s case and its complexity, the issues at stake, whether the applicant
contributed to the delay, and whether the applicant was prejudiced by the
delay. Based on these considerations, I have assessed whether the harm to the
public interest in allowing the admissibility hearing to proceed would be
greater than the harm caused by staying the admissibility hearing and have
concluded that it would not. The public’s sense of decency and fairness would
not be offended by allowing the admissibility hearing to proceed.
[54]
The applicant’s claim of abuse of process is
based on the 18 month delay and the uncertainty in that period, and on the
overall period since the date of his convictions. The applicant relies on Ratzlaff
at para 20 to support his submission that the whole period should be
considered. However, the passage relied on pertains to the facts in Ratzlaff
regarding a lengthy delay in moving forward with professional disciplinary charges
against a doctor despite the doctor’s attempts, dating back ten years, to
resolve the issue. The doctor retired thinking his billing dispute had been
resolved. The British Columbia Court of Appeal found that the delay was
egregious and amounted to an abuse of process even though a fair hearing could
still be held.
[55]
Unlike the facts in Ratzlaff, the
applicant did not engage with CBSA to determine the consequences of his
convictions prior to receiving the initial letter in 2013. Although counsel for
the applicant argued that he reported regularly and was available for
interviews, the delay for which he argues that he was prejudiced due to
uncertainty is only the delay from June 2013 to the date of receipt of the
notice of referral in November 2014.
[56]
There is no evidence that the delay between the
initial letter and the referral decision has prejudiced the applicant. It has
not impaired his ability to have a fair hearing and to answer the claims that
underlie the referral, given that his convictions are a matter of record and
are not in dispute. The references to association with gang members included in
other reports are not the basis for the referral. There is no evidence that the
applicant has conducted himself in any different manner since receiving the
initial letter relying on an assumption that no further action would be taken
against him. Nor is there any evidence that the CBSA investigation was improper
in any way.
[57]
The length of time that it took for the referral
to be made has not been explained. The facts are not complicated and it appears
that the information which formed the basis for the referral was available much
earlier. However, the delay cannot be characterised as inordinate. The record
demonstrates that the applicant’s file was reviewed on a few occasions and, as
a result of the review, the referral proceeded on the basis of paragraph
36(1)(a) of the Act and not on the basis of other information that had been
considered. The reports on the record also demonstrate that the applicant’s
submissions were considered.
[58]
Nor can the Minister’s decision to pursue the
referral for an admissibility hearing be considered as double jeopardy. The
applicant served the sentence for his convictions but there are additional
consequences for a permanent resident who has criminal convictions, as provided
in the Act.
[59]
The applicant was fully aware during the 18
month period that the investigation was ongoing. He was advised that the
October 2013 report had been referred to a supervisor and he was later advised
that additional information had been requested by the Minister’s delegate, that
the decision would be made within a few weeks, and that he could make
additional submissions and he did so. The delay did not impair his ability to
answer the allegations. He knew that he could be referred to an admissibility
hearing and he knew that he would be at risk of removal.
[60]
By comparison, in Fabbiano, more than six
years elapsed between the initial letter in 2007 and the referral decision in
2013. Mr Fabbiano made submissions in 2007 and had no further opportunity to
update his submissions. The Court found that after more than six years, it was
reasonable for Mr Fabbiano to conclude that he was no longer at risk of
removal.
[61]
With respect to the delay between the
applicant’s criminal convictions and the initial letter, while I agree that the
respondent could have taken action much earlier, and no explanation has been
provided for the lack of action, I am mindful of the words of the Court in Blencoe
that “staying the proceedings for the mere passage
of time would be tantamount to imposing a judicially created limitation period”
(at para 101).
[62]
The jurisprudence is clear that delay alone is
not enough; real prejudice must arise from the delay. The delay from the date
of the convictions, if this period should be considered, has not affected the
applicant’s ability to address the allegations that the referral is based on.
The convictions have been established and there is no need to find witnesses
from 1999 or 2003 to establish or refute those convictions.
[63]
The applicant argues that he carried on with his
life reasonably believing that no further action would be taken against him
following his convictions and sentence, however, there is no evidence of this,
other than that he has two children and a common law partner. The Officer’s
first “Section 44(1) and 55 Highlights Report – Inland Cases” noted that there
is little evidence of establishment in Canada. The record indicates that one of
his children was born before his first conviction, so it cannot be suggested
that he chose to have a family in Canada on the assumption he would be immune
from the consequences of his convictions. Nor is there any evidence that he
conducted himself in a different manner after June 2013 or after failing to get
prompt responses about the status of the inadmissibility proceedings on the
assumption that no further action would be taken. In addition, he made
submissions in July 2013 and in September 2014 which noted his family in Canada
and other H&C related factors.
[64]
Moreover, the Supreme Court of Canada has set a
high bar for finding an abuse of process where the fairness of the hearing has
not been compromised. In Blencoe, the Court noted that it must “directly [cause] significant psychological harm to a person,
or [attach] a stigma to a person's reputation, such that the human rights
system would be brought into disrepute” (at para 115).
[65]
The applicant has not established such
prejudice; his submission that he is established in Canada and will no doubt
suffer psychological harm, does not reach the level of significant
psychological harm or stigma to a person’s reputation.
[66]
Although the 18 month delay would cause
uncertainty and anxiety for anyone, including the applicant, I do not find that
this delay was so lengthy as to be one of the extremely rare “clearest of cases” that constitute an abuse of
process.
[67]
In summary, a stay of proceedings is an
exceptional remedy reserved for the clearest of cases. Delay in pursuing
proceedings, without more, is not enough. There must be prejudice to the
applicant arising from an inordinate delay. In the present case, the delay is
not inordinate and it has not impaired the ability of the applicant to respond
to the subsection 44(2) report, nor has it caused the applicant psychological
harm or other prejudice. Although the facts are not complicated, the delay has
not been explained and the stakes are high for the applicant, to impose a stay
based only on the delay is the same as imposing a limitation period on pursuing
inadmissibility proceedings.
[68]
These considerations lead to the determination
whether “the damage to the public interest in the
fairness of the administrative process should the proceedings go ahead would
exceed the harm to the public interest in the enforcement of the legislation in
the proceedings were halted.” I cannot conclude that the public interest
would be damaged by proceeding with the subsection 44(2) admissibility hearing.
If the inadmissibility proceedings are permanently stayed, only due to the
passage of time, and not due to any prejudice to the applicant other than
uncertainty regarding the next steps over an 18 month period, the integrity of
the justice system would arguably be more damaged. In my view, the public
interest is best served by the admissibility hearing proceeding and being
determined on its merits.
[69]
The applicant submits that if the three part
test in Fabbiano (which as I noted above, is derived from Babos)
is applied, the Court should conclude that there is no other adequate remedy
other than a stay. I have considered and applied that test. As noted, I do not
find that there has been a prejudice to the accused. He continues to have the
ability to answer the allegations at his admissibility hearing. He has not
established any other prejudice. Nor do I find that the integrity of the
justice system has been prejudiced. Stage two of the test, the consideration of
an adequate alternative remedy, only comes into play once the Court finds that
there has been prejudice. An alternative remedy would be aimed at addressing or
correcting any prejudice short of imposing the stay of proceedings. No
prejudice has been found, so no alternative remedy need be considered.
[70]
The facts of this case simply do not meet the
high threshold established in the jurisprudence to find an abuse of process and
to, in turn, order a stay of proceedings.
There
has been no breach of the applicant’s Section 7 rights
[71]
The applicant submits that a delay in
administrative procedures can violate security of the person if the delay
causes psychological harm (Mahjoub (Re), 2013 FC 1095 at para 252 [Mahjoub]).
The applicant reiterates that the delay was inordinate, unexplained, caused him
prejudice and that proceeding now would be oppressive.
[72]
In Mahjoub, the Court stated with respect
to section 7:
[252] Turning to section 7 of the
Charter, a violation of procedural fairness amounting to a violation of fair
trial rights when an individual's liberty is engaged may occur through
significant prejudice caused by unacceptable delay (Blencoe at paragraph
101). Such prejudice may be established in two ways. First, administrative
delay may warrant a remedy where a party's ability to assert its case is
impaired, for example if essential witnesses have died, the memories of
witnesses have faded, or evidence is lost (ibid. at paragraph 102).
Second, delay may warrant a remedy where the affected individual experiences
significant psychological harm or reputation stigma, such that the
administrative process suffers disrepute and the delay constitutes an abuse of
process. Justice Bastarache emphasized the rare circumstances under which even
a lengthy delay will reach this threshold (ibid. at paragraph 115). He
also highlighted the importance of a direct causal connection between the delay
and the harm suffered (ibid. at paragraph 133).
[73]
Given the high threshold established in Mahjoub,
there is no violation of the applicant’s section 7 rights. The applicant has
not established that his ability to participate in his admissibility hearing
and answer the allegations has been impaired. There is no evidence of any
impact on the applicant’s reputation or other stigma or psychological harm. His
submission that it can be assumed or presumed that the delay would occasion
psychological harm to him is not sufficient to establish psychological harm.
JUDGMENT
THIS
COURT’S JUDGMENT IS THAT:
1. The application for judicial review is dismissed.
2. There is no certified question.
"Catherine M. Kane"
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