Date: 20101209
Docket: A-181-10
Citation: 2010 FCA 337
CORAM: SEXTON
J.A.
EVANS J.A.
PELLETIER
J.A.
BETWEEN:
CHERYL SANDRA HORNE,
MARK ANSELM HORNE,
SUE ANNY SOPHIA HORNE,
AND SULAN MARYN HORNE,
BY THEIR LITIGATION GUARDIAN
CHERYL SANDRA HORNE
Appellants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario on December 9, 2010)
EVANS J.A.
[1]
Cheryl
Horne and her children, citizens of St. Vincent and the Grenadines, have
appealed from two decisions of the Federal Court, in which Justice Boivin
dismissed their applications for leave and judicial review made pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA).
[2]
The
present appeal (Court File A-181-10) is against the refusal of an application
for leave to review a decision of an immigration officer to deny the
appellants’ application to remain in Canada
on humanitarian and compassionate grounds. The other appeal (Court File A-182-10)
is against a refusal of leave to review a decision by the same officer to deny
their application for a pre-removal risk assessment. The Judge’s order
dismissing both leave applications was issued on April 26, 2010. The appeals to
this Court raise identical issues and these reasons apply to both. A copy of
these reasons will be inserted in Court File A-182-10.
[3]
The
problem facing the appellants in bringing this appeal is that IRPA, paragraph
72(2)(e) provides that no appeal lies from a decision of the Federal
Court with respect to an application for leave made under subsection 72(1), or
any interlocutory decision. With respect to the judicial review of other
decisions made under the Act, no appeal lies from the Federal Court to this
Court, unless, in rendering judgment, the Federal Court judge certifies that a
serious question of general importance is involved and states the question: IRPA,
paragraph 74(d).
[4]
Despite
these preclusive clauses, this Court has held that they are not to be
interpreted literally. Neither precludes an appeal under section 27 of the Federal
Courts Act, R.S.C. 1985, c. F-7, on the ground of jurisdictional error by a
Federal Court judge, including a reasonable apprehension that the judge was
biased: Subhaschandran v. Canada (Solicitor General), 2005 FCA 27, [2005] 3 F.C.R. 255 at
para. 17; Narvey v. Canada (Minister of Citizenship and
Immigration),
(1999) 235 N.R. 305 (F.C.A.).
[5]
A litigant
who alleges that a judge is disqualified by bias must adduce “convincing
evidence to that effect” (R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.
32), particularly when the reasonable apprehension is said to arise from the
judge’s encounters, in his or her judicial capacity, with the parties or the
issues (Apotex Inc . v. Sanofi-Aventis Inc., 2008 FCA 394 at
para. 6).
[6]
The
appellants seek to rebut the presumption of judicial impartiality on two
grounds. First, they say, Justice Boivin was disqualified by bias from deciding
the leave application because, on February 11, 2010, he had dismissed their
motion to stay their removal pending the disposition of the application for
leave and judicial review. The Judge found (IMM-311-10) that the appellants had
not proved that removal to St.
Vincent and the Grenadines
would cause them such serious hardship as to constitute irreparable harm.
[7]
This Court
quashed the appellants’ appeal on the ground that they had not established that
even if, as counsel alleged, Justice Boivin had misapplied the tripartite test
for a stay he thereby lost jurisdiction (2010 FCA 55).
[8]
We are all
of the view that this allegation would not cause a reasonable person who had
thought the matter through in a realistic and practical manner to conclude that
the Judge was biased. In our view, Justice Boivin did not decide the merits of
the leave application when he refused the stay. In considering the first prong
of the tripartite test governing stays, he stated that he was prepared to
assume, without deciding the question, that the appellants had raised a serious
issue. Nor do we accept counsel’s argument that legal error by a judge gives
rise to a reasonable apprehension of bias.
[9]
Counsel
provided no authority for the proposition that judges who have heard a motion
for an interlocutory injunction are thereby disqualified from presiding at the
trial. Similarly, there is no basis for concluding that the mere fact that the
Judge had heard the stay motion predisposed him improperly to deny the
leave application.
[10]
Second,
the appellants say, events after Justice Boivin refused the stay, but before he
denied their leave application, also gave rise to a reasonable apprehension of bias.
They ague that counsel’s forceful criticism of the Judge’s reasons in the appellants’
attempted appeal to this Court against the refusal of the stay, and in the
leave application itself, including an allegation that Justice Boivin so
misapplied the law as to exceed his jurisdiction, would have caused him to be
biased against them.
[11]
We do not
agree. Like every one else, judges prefer bouquets to brickbats. Nonetheless,
allegations of error are such an integral part of the judicial lot that we are
not persuaded that a reasonable person would conclude that counsel’s criticism
would cause the Judge to disregard his judicial oath in order to punish the appellants.
Counsel cannot create bias by intemperate criticism of a judge’s reasons.
[12]
The
appellants also rely on their counsel’s complaint to the United Nations Human
Rights Committee that deportation would violate their internationally protected
human rights. Canada’s Border Services Agency
complied with a request from the UN High Commissioner for Human Rights not to
remove the appellants until the Committee had had time to study their complaint.
[13]
We do not
agree that a reasonable person would think that the Judge would regard these
events as an affront that would prevent him from judging the leave applications
impartially. In Boparai v. Canada, 2008 FC 251, Justice Snider refused
to recuse herself on the ground that counsel had previously complained
unsuccessfully to the Canadian Judicial Council that she was biased in
immigration cases. The argument of the appellants in the present case is
analogous, and similarly unpersuasive.
[14]
For these
reasons, the appeal will be dismissed.
"John
M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-181-10
(APPEAL FROM THE ORDER OF THE HONOURABLE
JUSTICE BOIVIN OF THE FEDERAL COURT DATED APRIL 26, 2010, IN DOCKETS IMM-311-10
AND
IMM-310-10)
STYLE OF CAUSE: CHERYL
SANDRA HORNE,
MARK ANSELM
HORNE, SUE ANNY SOPHIA HORNE,
AND SULAN MARYN HORNE,
BY THEIR
LITIGATION GUARDIAN CHERYL SANDRA HORNE v. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 9, 2010
REASONS FOR JUDGMENT OF THE COURT BY: (SEXTON, EVANS & PELLETIER JJ.A)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Rocco Galati
Katherine Ramsey
|
FOR THE APPELLANTS
|
|
Michael
Butterfield
Kevin Doyle
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Rocco Galati Law Firm
Professional Corporation
Barrister and Solicitor
Toronto, Ontario
|
FOR THE APPELLANTS
|
|
Myles J.
Kirvan
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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