Date: 20120220
Docket: A-483-11
Citation: 2012 FCA 59
CORAM: LAYDEN-STEVENSON
J.A.
GAUTHIER J.A.
STRATAS
J.A.
BETWEEN:
AL-MUNZIR
ES-SAYYID
Appellant
and
THE MINISTER
OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT OF THE
COURT
[1]
The
appellant, a Convention refugee, wants to remain in Canada. The
Minister disagrees. He issued a danger opinion: the appellant is a danger to
the public and would not be at risk if returned to his country of origin
because of changed country conditions. Based on this danger opinion, the
Minister intends to enforce a removal order against the appellant.
[2]
In
response, the appellant filed an application for leave and judicial review of
the danger opinion in the Federal Court. He also moved for a stay of the
removal order.
[3]
On
the stay motion, the parties filed evidence and written submissions. Oral
submissions were received by way of teleconference. The Federal Court (per Justice Shore)
denied the stay: 2011 FC 1489. This is an appeal from that decision.
[4]
In
this appeal, the appellant seeks to quash the denial of the stay on the basis
that the judge is biased. The appellant does not suggest that the judge is
biased in all cases. Indeed, the appellant stated in this Court that the judge
is conscientious and takes each case seriously. Rather, the appellant says that
the judge has a bias only in a limited category of cases – this case falling
within it – namely cases where criminality is involved. Further, the judge’s
bias is said to be “unconscious,” stemming from a “fixation” about “enforcement.”
[5]
For
the reasons that follow, we would dismiss the appeal.
A. The stay motion
in the Federal Court
[6]
In
the immigration context, the leading case on stays is Toth v. Canada (Minister of
Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.). Although
pre-dating the Supreme Court’s seminal stay decision in RJR-MacDonald Inc.
v. Canada (Attorney General), [1994] 1 S.C.R. 311, Toth is not
inconsistent with that decision, as both are based on American Cyanamid Co.
v. Ethicon Ltd., [1975] A.C. 396 (H.L.).
[7]
To
grant a stay, the Court must be convinced that a serious issue exists,
irreparable harm would result if the removal is not stayed, and the balance of
convenience favours staying the removal. The test is conjunctive. All three
branches must be satisfied.
[8]
We
shall set out a brief summary of the facts relevant to the parties’ arguments
concerning the stay motion in the Federal Court in order to situate the issues
that the judge had to consider.
[9]
At
the time of the stay motion, the appellant was twenty-two years of age and has
been in Canada since he was
seven.
[10]
Central
to the appellant’s submissions on the stay motion was his allegation that he
faces danger if he were removed from Canada and sent back to Egypt. This danger
stems from his parents’ persecution in Egypt, including
instances of extrajudicial detention and torture. While out of Egypt, his father
was convicted in absentia for ties to terrorist groups.
Ultimately, the appellant and his family fled to Canada and claimed
refugee protection. Today, the appellant says he has no relationship with his
parents’ extended family, and has no memory of ever living in Egypt. Some of his
close relatives are now naturalized Canadians.
[11]
Among
other things, the appellant contended that although the regime in Egypt had changed,
the old security apparatus remains and poses a threat to the appellant.
[12]
In
response to the stay motion, the Minister emphasized the appellant’s criminal
record in Canada. Over the
last seven years, the appellant was convicted of armed robbery, robbery,
conspiracy to commit robbery, theft, carrying a concealed weapon, assault,
possession of heroin while incarcerated, uttering threats, possession of
property obtained by crime, and obstructing a police officer. This is only a
partial summary of the convictions. Some victims were female escorts and
patrons at a private club. Weapons included a knife and a shotgun.
[13]
The
Minister, relying on the danger opinion, submitted in the Federal Court that
the appellant no longer has a well-founded fear of persecution in Egypt and no
longer faces a risk of harm in Egypt. In the Minister’s view, the regime in Egypt has been
overthrown, members of the group Al Jihad (of which the appellant’s father was allegedly
once a member) have been released from prison, and arrests currently happening
in Egypt do not
involve family members of persons considered to be former political dissidents.
[14]
As
stated earlier, the parties filed their materials and written evidence. The stay
motion came before the judge. A teleconference hearing took place.
[15]
At
the outset of the teleconference hearing, the appellant alleged that the judge
was biased in cases involving criminality. He asked the judge to recuse
himself. At this time, the appellant referred only to statistics compiled by
counsel concerning the Minister’s success rate in cases such as this.
[16]
Although
it appears that an opinion report (the “opinion”) analyzing the judge’s cases
was in preparation, it had not been finalized. Therefore, it was not filed
before the judge in support of the allegation of bias.
[17]
After
receiving the parties’ oral submissions on whether he should recuse, the judge
declined to recuse himself. He assured counsel that he was not biased and that
he approached each matter with an open mind.
[18]
After
receiving the parties’ oral submissions on the merits of the matter, the judge reserved
for a short time. Ultimately, he accepted the Minister’s position and dismissed
the stay motion, finding that none of the branches of the test for a stay had
been met.
[19]
In
this Court, the appellant appeals from the refusal of the stay.
B. Events before
the hearing of this appeal
[20]
The
appellant sought an interim stay in this Court, preventing his removal from Canada pending the
disposition of this appeal. In support of this, the appellant filed the opinion
that had been under preparation. This Court granted the interim stay by order
dated January 6, 2012.
[21]
The
appellant has included the opinion in the appeal book. At the hearing of this
appeal, this Court expressed concern that it should not have been included
because it did not form part of the evidentiary record before the Federal Court
and considered by the judge. In response, the appellant attempted to justify
its inclusion, relying upon time pressures, the quick pace of the matter, and
the lack of advance notice about the identity of the judge hearing the stay motion
in the Federal Court.
[22]
The
presence of the opinion in the motion record for the interim stay does not mean
that it can be included in the appeal book. Normally only those materials that
were before the Federal Court can be included in the appeal book.
[23]
The appellant did
not bring a formal motion to include the opinion as fresh evidence in this
appeal, though some of his submissions can be taken as a plea to consider it on
that basis. We need not consider whether the opinion could meet the test for
fresh evidence because we find later in these reasons that the opinion is
inadmissible and, in any event, owing to its flaws, is of no assistance to us
on the issues in this appeal.
[24]
Also filed
for the first time on appeal was an affidavit attaching Department of Justice
submissions in nine other cases. Like the opinion, it should not have been
included in the appeal book without bringing a motion for fresh evidence. The
affidavit is inadmissible.
C. The
bias allegations
[25]
As
mentioned earlier, in this Court, the appellant again alleges bias. He relies
on three particular grounds:
(1)
The
judge is unconsciously biased in cases such as this. Here, the appellant offers
the opinion in support;
(2)
The
judge created a reasonable apprehension of bias by copying into his reasons
dismissing the stay motion most of the Minister’s written submissions, without
attribution; and
(3)
The
judge created a reasonable apprehension of bias by delving far too deeply into
the merits of the matter, rather than engaging in the normally cursory
examination done under the “arguable case” branch of the test for granting a
stay.
The appellant says that these three grounds
support and reinforce each other and must lead to the conclusion that the judge
should have recused himself.
D. Jurisdictional
considerations
[26]
The
parties agree that there are severe jurisdictional restrictions on this Court
hearing appeals in matters such as this.
[27]
The
decision under appeal is an interlocutory decision and, except in well-defined,
narrow circumstances, appeals are not available. Paragraph 72(2)(e) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”)
bars an appeal from an interlocutory judgment of the Federal Court. Paragraph
72(2)(e) appears in Division 8 of the Act. Provisions in Division 8,
such as paragraph 72(2)(e), prevail over any inconsistent provisions of
the Federal Courts Act, R.S.C. 1985, c. F-7, including the provisions
concerning appeals: subsection 75(2) of the Act.
[28]
The
well-defined, narrow circumstances are where a judge refuses to exercise
jurisdiction to decide the matter (Canada (Solicitor General) v.
Subhaschandran, 2005 FCA 27) and where there is a reasonable apprehension of
bias on the part of the judge (Re Zundel, 2004 FCA 394). However, this
Court does not have jurisdiction to hear appeals based on submissions, even
submissions that appear to possess considerable merit, that errors of law have
been committed (Mahjoub v. Canada, 2011 FCA 294).
[29]
In
our view, based on these authorities, we find that this Court has jurisdiction
to hear the appellant’s appeal based on the ground that the judge was
unconsciously biased and that his copying of the Minister’s written submissions
without attribution created a reasonable apprehension of bias. These are the
first and second of the three grounds for appeal set out above.
[30]
The
jurisdiction of this Court to consider the third ground raised by the appellant
is more problematic. To reiterate, this was the judge’s excessive delving into
the merits of the matter under the arguable case branch of the stay test.
[31]
Based
on the reasons written by the judge, the judge did engage in a microscopic
examination of the merits of the matter under the arguable case branch of the
test, embarking upon twenty-four detailed paragraphs of each of the appellant’s
arguments concerning the danger assessment and a further eight detailed
paragraphs concerning the risk assessment. Subject to certain well-defined exceptions,
not present here, this is not the approach called for under the Toth
test for a stay.
[32]
In
future cases, the approach followed by the judge should be avoided. Further, in
the leave application in this case, the judge hearing the matter should disregard
the judge’s microscopic examination of the merits of the matter under the
arguable case branch of the test.
[33]
The
appellant submits that the judge’s approach is indicative of bias. To us, this is
not a submission about bias. Instead, it smacks of a submission about the
merits of the judge’s decision-making, a matter that cannot be appealed to this
Court.
[34]
Therefore,
remaining before us are two grounds offered by the appellant in support of
bias, a matter that can be appealed to this Court. To reiterate, these are the
grounds based on unconscious bias and the unattributed copying in the reasons.
E. Analysis
[35]
The
parties agree that the following test applies:
[T]he apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information… [The] test is “what would an
informed person, viewing the matter realistically and practically—and having
thought the matter through—conclude. Would he think that it is more likely than
not that [the decision-maker], whether consciously or unconsciously, would not
decide fairly.”
(Committee for Justice and Liberty et
al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394.)
(1) Alleged
unconscious bias by the judge
[36]
As
mentioned previously, the opinion, authored by a law professor, has been
offered in support of this ground.
[37]
The
opinion examines 54 of the judge’s decisions in this area and purports to
analyze them, placing particular emphasis on their outcomes, not on whether
they were well-founded on the facts and the law. Ultimately, the opinion
concludes that “it is more likely than not that [the judge] will enter a
courtroom in these kinds of cases without the kind of open mind that is needed
to give a fair hearing to both parties.”
[38]
As
the Supreme Court has said, an allegation of bias of the sort made here “calls
into question not simply the personal integrity of the judge, but the integrity
of the entire administration of justice”: R. v. S.(R.D.), [1997] 3
S.C.R. 484 at paragraph 113.
[39]
There
is a strong presumption that judges will carry out their duties properly, and
with integrity: S.(R.D.), supra at paragraph 32 per
L’Heureux-Dubé J. and McLachlin J. (as she then was), and at paragraphs 116-17 per
Major J.; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 per
Abella J.; Wewaykum Indian Band v. Canada, 2003 SCC
445, [2003] 2 S.C.R. 259 per McLachlin C.J. This presumption can be
rebutted only by a “serious” and “substantial” demonstration made by “convincing
evidence”: Wewaykum, supra at paragraph 76; S.(R.D.), supra
at paragraph 32.
[40]
The
opinion offered in support of this allegation of bias falls well short of the
mark. In fact, in these circumstances, for the reasons set out below, the
opinion is inadmissible and, in any event, no weight can be accorded to it.
[41]
First,
the opinion is inadmissible. Expert evidence is admissible when it is “necessary
in the sense that it provide[s] information ‘which is likely to be outside the
experience and knowledge of a judge’”: R. v. Mohan, [1994] 2
S.C.R. 9, citing R. v. Abbey, [1982] 2 S.C.R. 24. Stripped to its essence,
the opinion merely summarizes legal decisions, offers legal submissions on
those decisions, and then expresses the author’s personal views on the ultimate
issue that is for this Court to decide, namely whether there is a reasonable
apprehension of bias. In actuality, the opinion is analogous to a memorandum of
fact and law. It fails the Mohan test.
[42]
Second,
at the hearing, we drew to the attention of counsel that Rule 52.2 of the Federal
Courts Rules, SOR/ 98-106 had not been followed. That Rule sets out an
exacting procedure that must be followed for the admission of expert evidence,
a procedure that, among other things, is designed to enhance the independence
and objectivity of experts on whom the courts may rely: see Rule 52.2(2) and
the Code of Conduct for Expert Witnesses in the Schedule to the Rules.
[43]
Third,
and related to the non-compliance with Rule 52.2, we have grave concerns about
the objectivity and independence of the opinion. There has been much judicial
commentary on the desirability of experts being independent of the parties and
objective and impartial in their opinions: see, for example, National
Justice Campania Naveria SA v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”),
[1993] 2 Lloyd’s Rep. 68, at pages 81-82. Some of the schedules to
the opinion reveal editorial comments about some of the decisions using
language that is gratuitous, intemperate and ideological. Further, the opinion
expresses dislike for some of the jurisprudence of the Federal Court and this
Court. This colours the opinion’s assessment of the judge’s decisions, many of
which follow this jurisprudence.
[44]
Fourth,
this opinion is in draft form and is unsigned.
[45]
Quite aside from admissibility, we can accord this opinion no
weight. The opinion is a statistical analysis by someone with no statistical
expertise of 54 cases decided by the judge between 2005-2010 involving “cases
in which criminality was a relevant feature of the immigration or refugee law
issues in the case.” The limitations of statistics are well-known. Even in the
specific areas where statistics are acknowledged to be useful (not here), the
degree of usefulness is linked to the scientific methodology followed and the intellectual
rigour used in their compilation and analysis. Here, the lack of acceptable
methodology and intellectual rigour, along with several obvious errors, reduces
the weight of this opinion to naught. There are many examples, but a few will
suffice:
● The 54 cases that make up the statistical
analysis were found by a student acting for counsel for the appellant. The law
professor did not undertake his own case law research.
● The opinion does not examine all of the judge’s relevant
decisions since appointment. It is unknown why the 2005-2010 period was chosen
and whether all of the relevant decisions of the judge in that period were examined.
We were advised at the hearing that the 54 decisions were gathered from an
electronic database. However, counsel for the appellant acknowledged that this
database may not include all of the judge’s decisions on stay motions.
● A number of the 54 decisions are not analogous to
this case, i.e., a number do not concern stays. One of the cases does
not even involve criminality.
● The opinion does not say that any of the 54 decisions
was wrongly decided on the facts and the law. No attempt was made to review the
records of the cases in order to see whether the judge reached fair and
arguable outcomes.
● The opinion is internally inconsistent. There are
many examples of this, but one will suffice. The opinion tells us that the statistics
on the 54 cases are “impossible to ignore,” it later tells us that the 54 cases
cannot be used to “establish actual bias per se,” and then it tells us
that only one example of “problematic judging” is enough to establish bias.
● The opinion alleges that the judge is biased
because the judge uses the balance of convenience branch of the test and the
existence of criminality to “zealously and rhetorically deepen the lack of
merit in the motion.” Far from being an example of bias, this is an example of
adherence to a statement by this Court that the protection of the Canadian
public is a paramount factor under the balance of convenience branch: Tesoro
v. Canada (Minister of Citizenship and Immigration), 2005 FCA 148. On other
occasions, the opinion does not take into account the law that the judge must
consider, law that results in relief being granted only exceptionally, regardless
of the judge deciding the matter. In this regard, the opinion does not consider
the decisions of other judges deciding matters such as this, nor does it
consider the success rate of parties before those other judges.
● The opinion alleges that the judge applies a test
more favourable to the Minister on the “serious issue” branch of the test for a
stay. In support of this, the opinion notes that in one case brought by the
Minister, the judge used the expression “not frivolous or vexatious” rather
than the expressions “serious issue,” “arguable issue,” and “arguable case,” expressions
that are used by the judge in cases brought by individuals. But often the
particular expression used in reasons by a judge is influenced by the
expression used by the parties in their submissions. And, as those familiar
with the law in this area know, these terms are often used interchangeably.
● The opinion suggests that the judge is biased in
his treatment of questions proposed for certification. That serious allegation
is based on only ten cases, and no evidence is offered to suggest that any of
the questions proposed in those cases met the test for certification. From
this, the opinion concludes that the judge does not want to be judged and “does
not have an expansive enough view of law and of the world.”
This pattern of reasoning in the opinion – slight evidence, questionable analysis,
extreme conclusion – happens at several places in the opinion.
[46]
Our
rejection of the opinion – for many reasons – leaves the appellant’s allegation
of unconscious
bias on the part of the judge without any support whatsoever. Therefore, we
reject this allegation.
[47]
Before
leaving this issue, we wish to make three final comments.
[48]
First,
we note that because the opinion states that bias was most apparent on stay
motions, we examined those cases with particular attention. We saw nothing in
them that would give the informed and reasonable person, viewing the matter
realistically and practically, any reason to think that the judge decided in a
biased way.
[49]
Second,
counsel for the appellant urged us, regardless of the weight we might give to
the opinion, to consider the statistics concerning the outcomes reached by the
judge. In our view, such statistics, without more, are of no probative value on
the issue of bias.
[50]
Finally,
the Supreme Court has said that alleging bias is “a serious step that should
not be undertaken lightly”: S. (R.D.), supra at paragraph 113.
Given the harm caused to the administration of justice when unsubstantiated allegations
are made, and given the serious shortcomings of the opinion tendered in this
case, we cannot help but express our deep disappointment.
(2) The
judge’s reasons
[51]
The
appellant is correct that the judge copied into his decision, almost verbatim,
much of the Minister’s written submissions, without attribution. Indeed, the
judge substantially copied 62 of 66 paragraphs of the Minister’s written
submissions.
[52]
The
judge’s copying must be placed in its proper context.
[53]
First,
at the beginning of his analysis, the judge wrote the following:
[20] The Court, subsequent to
reading all of the submitted materials, having heard both parties in a
teleconference hearing and reflected on the matter, agrees with the position of
the Respondent [Minister].
[21] The Applicant fails to raise an
arguable issue in his underlying application and fails to establish that he
would face irreparable harm if the stay scheduled for the 19th, 20th or 21st of
December, 2011 were not granted. The Court agrees with the Respondent that the
balance of convenience weighs in favour of the public interest in this case.
The Applicant is a foreign national who is to be removed subsequent to his
having been determined to be inadmissible for serious criminality, all of which
is explained below[.]
This was the judge’s original prose.
[54]
In
argument before us, counsel for the appellant admitted that if the judge had
written only these two paragraphs and nothing else, the reasons would have been
sufficient and would not have created any apprehension of bias.
[55]
Second,
the appellant asked the judge to render judgment very quickly in order to
facilitate onward review and the judge acceded to that request. Seen in this
light, the judge’s resort to copying of the 62 paragraphs from the Minister’s
written submissions could be seen as an attempt – quick, convenient and
shorthand, yet ill-advised – to outline the Minister’s position that he had
adopted.
[56]
Third,
the nature of the teleconference hearing conducted by the judge forms part of
the context. At the hearing of this appeal, we informed the parties that we had
obtained the Registrar’s minutes of the teleconference hearing and we invited
the parties to make submissions on what we had learned from those minutes.
[57]
The
minutes show that the teleconference lasted just under two hours. All but twenty-five
minutes of the hearing concerned the merits of the stay motion. Those twenty-five
minutes concerned the request that the judge recuse himself. During the entire
hearing, the judge asked many questions of both parties. Counsel for the
appellant estimated that teleconference hearings concerning stay motions take
between 30 and 45 minutes on average, and, on occasion, an hour. Accepting that
estimate for argument’s sake, the argument on the merits in this case lasted
double the average.
[58]
The
appellant notes that the judge has engaged in the copying of a party’s
submissions without attribution in other cases. Indeed, the judge has done this
in varying degrees in some other cases, but not just in cases involving the
Minister and not just in cases involving criminality. We do not think that this
furthers the appellant’s argument that the judge was biased in favour of the
Minister in this case.
[59]
On
a fair construction of the judge’s reasons, viewed in light of the foregoing
contextual facts, we are of the view that any fully-informed, reasonable person
would conclude that the judge considered the material before him and the
parties’ submissions and decided the matter before him in an open-minded,
independent and impartial way.
[60]
Therefore,
we reject the appellant’s submission that there was bias or a reasonable
apprehension of bias in the case arising from the unattributed copying of the
Minister’s submissions. However, more must be said.
[61]
This
Court has warned against the practice of copying a substantial part of a
party’s written submissions without acknowledging that it is doing so: Janssen-Ortho
Inc. v. Apotex Inc., 2009 FCA 212. Copying the bulk of a party’s written
submissions “may lead to the impression that the judge has not done the work
which he is called upon to do, namely, to examine all of the evidence before
him and to make the appropriate findings” (at paragraph 77). As the appellant
has observed, submissions of the Minister copied, without attribution, into
reasons will be seen by later readers as the reasons of the judge, when in fact
the Minister drafted them.
[62]
We
reiterate the warning in Janssen-Ortho in the strongest possible terms.
Judges should draft their own prose, explaining the basis for their decisions.
Adopting or incorporating into the reasons, with attribution, portions of the
written submissions is permissible. But that is subject to an important
overriding consideration – in the end, the reasons must always be, and be seen to
be, the end-product of the judge’s own assessment of the key issues raised in
the case. In this regard, we emphasize (and appellant’s counsel agreed) that
only a paragraph or two may suffice in cases such as this. Here, the issues
were straight-forward, the law was well-settled, and speed was of the essence.
[63]
Absolutely
nothing good can come from the practice followed by the judge in this case, i.e.,
copying a substantial portion of one of the parties’ submissions without
attribution. It creates a cloud over those who engage in it and harms the
reputation of the administration of justice. This practice must stop.
(3) The grounds taken
together
[64]
In
the event that we found that none of the grounds individually established bias,
the appellant asked us to consider the matter globally. Looking at the overall
circumstances and assessing them all together, would an informed person,
viewing the matter realistically and practically, consider that the judge was,
or appeared to be, biased? Based on the above analysis, we answer this in the
negative.
F. Further relief requested
[65]
Earlier,
we noted that this Court granted an interim stay preventing the Minister from
carrying out the removal order “until the disposition of [this] appeal by this
Court.”
[66]
In
the event that this Court were to dismiss the appeal, the appellant requested
that this Court delay the coming into force of its judgment until the Supreme
Court decided his application for leave to appeal. On the appellant’s view of
the January 6, 2012 interim stay order, this would prevent the Minister from
carrying out the removal order until that time. The Minister opposes.
[67]
This
Court has the jurisdiction to grant such relief in its judgment: Federal
Courts Rules, Rule 53(1) (ability to attach terms to an “order”) and Rule 2
(an “order” includes a judgment).
[68]
In
light of the reasons for granting of the interim stay, it makes sense to delay
the coming into force of our judgment by three weeks, i.e., March 12,
2012. For clarity, the words “until the disposition of [this] appeal by this
Court”
in the interim stay order of January 6, 2012 shall be interpreted to mean March
12, 2012. This would allow counsel for the appellant, if so advised, to take
whatever steps may be appropriate in the Supreme Court of Canada.
[69]
Therefore,
we shall dismiss the appeal. Our judgment shall not take effect until March 12,
2012, at which time the interim stay granted by order of this Court on January
6, 2012 shall expire.
"Carolyn Layden-Stevenson"
"Johanne
Gauthier"
"David
Stratas"
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