Docket: IMM-4803-15
Citation:
2016 FC 403
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 11, 2016
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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AVTAR SINGH
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision rendered on October 26, 2015 by a law enforcement officer
[officer], which rejected the application for administrative stay made by the
applicant, who was seeking the deferral of his removal to India, which was to
take place on November 1, 2015.
[2]
Let us recall that section 48 of the Immigration
and Refugee Protection Act, S.C. 2001, chapter 27 [IRPA] states the
following:
48 (1) A removal
order is enforceable if it has come into force and is not stayed.
|
48 (1) La mesure
de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
|
(2) If a removal
order is enforceable, the foreign national against whom it was made must
leave Canada immediately and the order must be enforced as soon as
possible.
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(2) L’étranger
visé par la mesure de renvoi exécutoire doit immédiatement quitter le
territoire du Canada, la mesure devant être exécutée dès que possible.
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[Emphasis added]
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[Soulignements
ajoutés]
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[3]
In this case, the only grounds for deferral
cited by the applicant in light of the removal order—which was legally
enforceable—was his particular medical condition. In the opinion of his
attending physician, the applicant was not supposed to fly for at least four
months: “This patient has been followed for
hypertension and cardiac problems. His medication has not stabilized and he is
still undergoing investigation. He is not fit to fly for the next 4-6 months.”
Be that as it may, the officer gave preference to the opinion of a doctor from
the Canada Border Services Agency (CBSA), who deemed that, on the contrary, the
applicant could travel by plane.
[4]
On October 30, 2015, the Court agreed to
stay the removal order until a final decision was rendered regarding the
application for leave and for judicial review: Singh v. Canada (Public
Safety and Emergency Preparedness), 2015 FC 1235. My colleague, Justice
Harrington, notes the following in paragraphs 7 and 8 of his decision:
In my opinion, Mr. Singh’s health is a
serious issue. He may suffer irreparable harm such as a heart attack or death
in taking two flights to get from Montréal on November 1st to Delhi on November
3rd. The balance of convenience favours him. On the one hand there is no great
inconvenience to the Government to await the outcome of Mr. Singh’s
follow-up tests; while on the other hand it is most inconvenient to be dead.
During oral argument, I made reference to
two decisions of mine which are somewhat similar, and in both cases stays were
granted. See Solmaz v Canada (Minister of Public Safety and Emergency
Preparedness), 2006 FC 951 and Tobin v Canada (Minister of Public Safety
and Emergency Preparedness), 2007 FC 325. This is truly a case in which it
is preferable to maintain the status quo ante until the results of
Mr. Singh’s scheduled stress test are known.
[5]
More than four months have passed since the
removal order was stayed. As a preliminary objection, the respondent therefore
submits that the applicant obtained the remedy he sought and that this
application for judicial review should be dismissed as it is now moot (Tovar
v. Canada (Citizenship and Immigration), 2015 FC 490, paragraph 43 and
the case law cited in this paragraph). For his part, the applicant—who is basing
his argument on Baron v. Canada (Public Safety and Emergency Preparedness),
2009 FCA 81 [Baron]—alleges that the issue is not moot. At the hearing,
I decided to hear counsels’ arguments on merit, while reserving the right
to dismiss the application on the preliminary ground raised by the respondent.
[6]
The facts in this case are different from those
in Baron, wherein the Federal Court of Appeal (Chief Justice Blais
holding a dissenting opinion on the issue of theoretical nature) determined
that the enforcement officer’s refusal to defer the appellants’ removal from
Canada was reasonable and that the officer’s decision must stand. On appeal,
both the appellants and the respondent agreed that the dispute was not
theoretical and that the trial judge (Justice Dawson) had made an error of law
in dismissing the application for judicial review on the ground that it was
theoretical and in refusing to exercise her discretionary power. To this
effect, the parties argued “that a live controversy
continues to exist between them and that it is not the passing of the scheduled
date of removal . . . which renders the application moot.” The majority
of the Court (Justice Nadon and Justice Desjardins) found that it must be
determined “whether [the] appellants should be removed
before determination of [their] H&C application.”
[7]
Based on Baron, the law is clear: given
an enforcement officer’s limited discretion, the simple existence of an H&C
application is not a ground for deferral in itself, even though the officer can
nonetheless defer the removal until a decision is made regarding the H&C
application, if there are indications in the case that such a decision is
imminent (Laguto v. Canada (Citizenship and Immigration), 2013 FC 1111,
paragraphs 39–41; Kampemana v. Canada (Public Safety and Emergency
Preparedness), 2015 FC 1060, paragraphs 33–34, as well as the case law
cited in these paragraphs). In this case, the applicant arrived in Canada on
July 17, 2007, after having obtained a Canadian visa. The applicant has
exhausted all recourse available to him under the Act and there is no H&C
application pending, and there are no other grounds—we will come back to the
specific medical ground cited by the applicant—that can, at present, authorize
an officer to defer the applicant’s removal (e.g. the need to conduct a risk
assessment before removal).
[8]
However, the applicant asks the Court to set
aside the October 26, 2015 decision, and to refer the request for deferral
of removal back to another law enforcement officer for redetermination.
Essentially, the applicant maintains that when a person’s life is in danger,
the officer must defer the removal, which is the case when a person has a
medical condition rendering him or her unfit to travel by airplane. Since the
officer has no medical expertise, the applicant is not contesting the fact that
the officer may solicit the advice of a CBSA doctor (Gonzalez v. Canada
(Public Safety and Emergency Preparedness), 2014 FC 1178,
paragraphs 15–18). However, in the present case, the applicant submits
that the officer did not sufficiently explain in the disputed decision why he
gave greater weight to the CBSA doctor’s opinion, which was based solely on a
review of the applicant’s medical record. In addition, it was not taken into
account that the flight to India takes two days, which increases the applicant’s
risk.
[9]
This application is moot. It is well established
that the law enforcement officer has limited discretionary power to defer
enforcement of a removal order, when the standard of review for this decision
is the reasonableness standard. Even if the officer should have, as the
applicant claims, considered the applicant unfit to travel by airplane, he
could not have indefinitely deferred the applicant’s removal, and if one
accepts that he should have deferred the removal order by a few months, he
could not have deferred it beyond the period of four to six months recommended
in the medical opinion of the attending physician.
[10]
When there is no longer any existing dispute
that can have a practical impact on the parties’ rights, legal recourse becomes
theoretical. In such cases, three factors may be taken into account to
determine whether a Court should still examine the merits: the existence of an
adversarial context; judicial economy; the law-making function of the Court and
not intruding into the role of the legislative branch (Borowski v. Canada
(Attorney General), [1989] 1 S.C.R. 342). Even if there was an adversarial
context regarding the reasonableness of the officer’s decision, judicial
economy argues against exercising my judicial discretion to decide on the merit
of the application, and as for the law-making function of the Federal Court, no
question of law of general importance was really argued by the parties, as was
the case in Baron.
[11]
The applicant’s Indian passport has been expired
for quite some time, and therefore the applicant cannot be removed to his
country without another valid travel document. The practical issue is that the
travel document issued in September 2015 by the Indian High Commission
contained an expiry date (December 16, 2015), which has now passed.
Therefore, it may be a few more months before the removal order can be
enforced. Given that the applicant did not take the airplane to India on
November 1, 2015, it must therefore be concluded that the question of
whether the rights under section 7 of the Charter were upheld is a
hypothetical matter. Furthermore, it remains unknown whether the applicant
still suffers from hypertension—he has been taking medication to stabilize his
condition for several months now—and the applicant’s current medical condition
is completely unknown. What would this Court’s opinion be worth based on an
outdated medical record?
[12]
What the applicant is actually contesting is how
the officer weighed the medical evidence on record. In this case, the applicant
submitted in support of his application a letter from his attending physician
indicating that he had hypertension and heart problems, that his medication had
not yet stabilized his hypertension and that he needed to undergo further tests
(an Exercise Stress Test in particular). Since the applicant was not removed
from Canada, it can be expected that his attending physician now has the
results of the stress test in question, as well as the results of any other
blood test that he may have had during the past four months. By the time a new
removal date is set, the previous medical opinions of the attending physician
and of the CBSA doctor will be of no value, unless they are updated. The
judgment that this Court could render today on the merit would therefore be, in
all respects, superfluous and would have no practical effect on the parties’
rights (Solis Perez v. Canada (Citizenship and Immigration), 2009 FCA
171, paragraphs 5–6; Hakeem v. Canada (Public Safety and Emergency
Preparedness), 2011 FC 1302, paragraphs 8–14; Banga v. Canada
(Citizenship and Immigration), 2012 FC 1332, paragraphs 1–2).
[13]
At the risk of repeating myself, regardless of
the outcome regarding the merit of the application for judicial review—whether
it be allowed or dismissed by the Court—everything will have to be redone with
another officer. The Court therefore allows the respondent’s preliminary
objection and dismisses the present application for judicial review. Counsel
for the parties agree that there are no serious questions of general importance
in this case.