Somodi v. Canada (Citizenship and Immigration), 2009 FCA 268

Date: 20090917

Docket: A-616-08

Citation: 2009 FCA 268

 

CORAM:       LÉTOURNEAU J.A.

                        SEXTON J.A.           

                        LAYDEN-STEVENSON J.A.

 

BETWEEN:

ZSOLT SOMODI

Appellant

 

 

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

Heard at Toronto, Ontario, on September 17, 2009.

Order delivered from the Bench at Toronto, Ontario, on September 17, 2009.

 

REASONS FOR ORDER OF THE COURT BY:                                LAYDEN-STEVENSON J.A.

 

 

Date: 20090917

Docket: A-616-08

Citation: 2009 FCA 268

 

CORAM:       LÉTOURNEAU J.A.

                        SEXTON J.A.           

                        LAYDEN-STEVENSON J.A.

                                   

                       

BETWEEN:

ZSOLT SOMODI

Appellant

 

 

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER OF THE COURT

(Delivered from the Bench at Toronto, Ontario on September 17, 2009)

 

LAYDEN-STEVENSON J.A.

 

[1]               Insofar as the constitutional challenge to paragraph 72(2)(a), subsection 63(1) and sections 72 and 74 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA) and sections 18, 18.1 and 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7 is based on alleged breaches of sections 7 and 15 of the Canadian Charter of Rights and Freedoms, 1982  (the Charter), the argument will not be entertained.

 

[2]               In Coca-Cola Ltd. v. Parnham (c.o.b. Universal Exporters), 2007 FCA 11, leave to appeal dismissed, [1999] S.C.C.A. No. 338, this Court held that it would not entertain Charter arguments that were not raised before the Federal Court because to do so would deprive this Court of the benefit of the application judge’s reasoning and analysis on the arguments. 

 

[3]               Further, by raising the issues for the first time at the appellate level, the appellant will have deprived the respondent of any opportunity to lead evidence relating to the alleged breaches. 

 

[4]               Finally, no factual foundation to support a breach of either section 7 or section 15 of the Charter has been made out.

 

[5]               The Supreme Court of Canada has repeatedly emphasized the necessity of a proper evidentiary foundation to support allegations of Charter breaches.  This Court, in Bekker v. Canada, 2004 FCA 186, at paragraph 12 stated as follows:

 

It is a serious matter to invoke the Charter to challenge the validity

            of legislation enacted by Parliament.  Such challenges normally

            require an evidential foundation.  Constitutional issues cannot and

            should not be decided in a factual vacuum.  As Cory J. said in

            MacKay v. Manitoba, [1989] 2 S.C.R. 357 at pages 361-362:

 

                        Charter decisions should not and must not be made

                        in a factual vacuum.  To attempt to do so would trivialize

                        the Charter and inevitably result in ill-considered

                        opinions.  The presentation of facts is not, as stated

                        by the respondent, a mere technicality; rather, it is

                        essential to a proper consideration of Charter issues…

                        Charter decisions cannot be based upon the unsupported

                        hypotheses of enthusiastic counsel.

[6]               Consequently, the respondent’s objection will be allowed and we will not entertain a

constitutional challenge that is founded on alleged breaches of sections 7 and 15 of the

 

Charter. 

 

                                                                                                         “Carolyn Layden-Stevenson”

 

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                                                              A-616-08

 

APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE MANDAMIN

DATED DECEMBER 5, 2008, IN DOCKET NO. IMM-3145-07

 

 

STYLE OF CAUSE:                                                              ZSOLT SOMODI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                                                        Toronto, Ontario

 

DATE OF HEARING:                                                          September 17, 2009

 

REASONS FOR ORDER

OF THE COURT BY:                                                           (LÉTOURNEAU, SEXTON &           

                                                                                                LAYDEN-STEVENSON JJ.A.)

 

DELIVERED

FROM THE BENCH BY:                                                    LÉTOURNEAU J.A.

 

APPEARANCES:

 

Rocco Galati	FOR THE APPELLANT
Gordon Lee Nicole Rahaman	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Rocco Galati Law Firm Toronto, Ontario	FOR THE APPELLANT
John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT