Date: 20090506
Docket: A-210-08
Citation: 2009 FCA 145
CORAM: NOËL
J.A.
NADON J.A.
PELLETIER
J.A.
BETWEEN:
JAIME CARRASCO VARELA
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
This is an
appeal from the decision of Mr. Justice Harrington (the application judge),
reported as 2008 FC 436, [2008] F.C.J. No. 568, in which he dismissed an
application for judicial review of the decision of the Immigration and Refugee
Board (IRB) that the appellant, Mr. Jaime Carrasco Varela, was inadmissible to
Canada pursuant to paragraph 35(1)(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. Although a number of grounds of appeal
were raised, the dominant issue on appeal was the appropriateness of the
questions certified by the application judge, and the consequences of
inappropriate certified questions on Mr. Carrasco Varela's right of appeal.
THE FACTS
[2]
Mr.
Carrasco Varela entered Canada as a refugee claimant on
August 1, 1991. His claim for Convention Refugee status was heard in December
1991. The Convention Refugee Determination Division rejected his claim in March
1992 on the basis that he was excluded from refugee protection by Article 1F(a)
of the United Nations Convention Relating to the Status of Refugees, 28
July 1951, 189 U.N.T.S. 150 (entered into force 22 April 1954), because there
were serious reasons to consider that he had committed a crime against
humanity. Mr. Carrasco Varela's application for leave to appeal from that
decision was dismissed.
[3]
Notwithstanding
this decision, Mr. Carrasco Varela remained in Canada on a Minister's permit and, in due
course, filed an inland application for permanent resident status on
humanitarian and compassionate (H&C) grounds. In the course of the processing
of that application, a senior immigration officer determined that Mr. Carrasco
Varela was inadmissible to Canada under paragraph 19(1)(j) of the
Immigration Act, R.S.C. 1985, c. I-2.
[4]
Mr. Carrasco Varela brought an application for judicial
review of the senior immigration officer's decision on grounds of procedural
fairness. That application was heard by Madam Justice Dawson who allowed it on
the basis that the senior immigration officer did not take into account the
defences of obedience to superior orders and compulsion: see Varela v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 483, 205
F.T.R. 1, at paras. 27-33. As a result, Mr. Carrasco Varela made a fresh
H&C application, which remains outstanding to this date.
[5]
Concurrently with the refusal of the application for
permanent resident status, the Minister also instituted proceedings leading to
an inquiry (now called an admissibility hearing) as to whether Mr. Carrasco
Varela was inadmissible to Canada under paragraph 19(1)(j) of the Immigration
Act. Despite the fact that the inquiry began on January 19, 2000, a
decision was not rendered until January 2007, by which time the Immigration
Act had been replaced by the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act). The IRB held that Mr. Carrasco Varela was
inadmissible to Canada under paragraph 35(1)(a)
of the Act, the successor to paragraph 19(1)(j) of the Immigration
Act. That decision was the subject of the judicial review in the Federal
Court.
[6]
The IRB's decision was based on findings of fact in relation
to three time periods. The first is Mr. Carrasco Varela's period of service as
a guard at El Chipote Prison near Managua, Nicaragua. The IRB
found that Mr. Carrasco Varela took part in atrocities and participated in the
inhumane treatment of prisoners. The atrocities were committed against "a
civilian population, nationals of Nicaragua who were
in opposition to the official party of this country…": see Canada
(Minister of Citizenship and Immigration) v. Varela, [2007]
I.D.D. No. 32, at paras. 60, 67 (Varela). In a statement given to
immigration officials, Mr. Carrasco Varela reportedly said that El Chipote
Prison was "a detention centre used solely to detain political
prisoners…": see Varela, at para. 63.
[7]
The second is the period during which Mr. Carrasco Varela
was transferred from El Chipote Prison to serve in a rural garrison. The IRB
found that he was involved in killing peasants in the course of anti-insurgency
operations against the Contras. The IRB specifically discounted Mr. Carrasco
Varela's evidence that he was able to avoid active military service while in
the countryside by obtaining a false medical certificate indicating that he had
a heart condition.
[8]
The third is the period following his return from the
countryside to El Chipote Prison. Four individuals who had kidnapped a Soviet
military attaché to Nicaragua were
taken from the prison and summarily executed. Although Mr. Carrasco Varela was
a member of the execution squad, he claimed that he had refused to take part in
the shooting and was beaten by his commander as a result. The IRB did not
believe his evidence and concluded that he participated in the murder of the
four men.
[9]
On
the basis of these conclusions, the IRB found that there were reasonable
grounds to believe that Mr. Carrasco Varela was inadmissible to Canada on the
basis that he was a foreign national who had committed acts outside Canada that
constitute an offence referred to in sections 4 to 7 of the Crimes Against
Humanity and War Crimes Act, S.C. 2000, c. 24.
THE DECISION UNDER REVIEW
[10]
The application judge began his analysis by identifying the
elements of a crime against humanity, as defined by the Supreme Court in Mugesara
v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at
para. 119 (Mugesara), as follows:
As we shall
see, based
on the provisions of the Criminal Code and the
principles of international law, a criminal act rises to the level of a crime
against humanity when four elements are made out:
1. An enumerated
proscribed act was committed (this involves showing that the accused committed
the criminal act and had the requisite guilty state of mind for the underlying
act);
2. The act was committed
as part of a widespread or systematic attack;
3. The attack was
directed against any civilian population or any identifiable group of persons;
and
4. The person
committing the proscribed act knew of the attack and knew or took the risk that
his or her act comprised a part of that attack.
[11]
The
application judge then examined the evidence supporting the finding that Mr.
Carrasco Varela was inadmissible to Canada.
He concluded that he should not disturb the IRB's conclusion that the latter
had committed atrocities against prisoners at El Chipote Prison. On the other
hand, he found "no clear and compelling information which would give
reasonable grounds to believe he deliberately killed innocent peasants":
see reasons, at para. 20. As for the execution of the kidnappers, the
application judge found that the IRB's conclusion should not be disturbed. In
short, the application judge concluded that the first part of the test set out
in Mugesara had been satisfied.
[12]
As for the
other elements of the test, the application judge considered that, in the case
of the kidnappers, it was clear that they were treated as enemies of the state.
He was of the view that, since paragraph 35(1)(a) covered both crimes
against humanity and war crimes, it did not matter whether the kidnappers were
considered to be combatants (or prisoners of war) or civilians. In either case,
Mr. Carasco Varela was a person described in paragraph 35(1)(a).
[13]
Similarly,
the application judge found that the inmates of El Chipote Prison were either
Contras or civilians. "It matters not whether Mr. Carrasco's involvement
could be characterized as ill-treatment of prisoners of war or inhumane acts
committed against a civilian population": see reasons, at para. 31.
[14]
On that
basis, the application judge considered that the criteria in Mugesara
had been met.
[15]
The
application judge dismissed Mr. Carrasco Varela's arguments with respect to the
defences of superior orders and duress. He then dealt at some length with the
effect of a general amnesty that was declared as part of the agreement which
brought the Nicaraguan civil war to an end. He concluded that the IRB's failure
to deal with this defence raised by Mr. Carrasco Varela was not determinative
because, on his interpretation of the law, the amnesty would not apply to a
determination made pursuant to paragraph 35(1)(a) of the Act.
[16]
The
application judge then went on to deal with the possibility of an abuse of
process arising from the fact that by proceeding against Mr. Carrasco Varela
solely on the basis that he was inadmissible pursuant to paragraph 35(1)(a),
the Minister apparently left himself room to commence fresh proceedings for Mr.
Carrasco Varela's removal on the basis of serious criminality (section 36) if
the present proceedings were not successful.
[17]
Finally,
the application judge dealt with the issue of certifying a question for appeal.
He noted that it had been agreed during the hearing that a draft of his reasons
would be circulated so as to give counsel the opportunity to suggest questions.
As a result, counsel for Mr. Carrasco Varela suggested four questions, which
the application judge articulated as follows:
a. Are all
prisoners necessarily "civilians" for the purpose of defining a crime
against humanity as per [Mugesara,]?
b. May the
execution of criminals constitute a crime against humanity as being part of a
widespread and systemic attack on civilians?
c. Were the
acts committed by the Sandinistas against the Contras in military or civil war
activities part of a "widespread and systemic attack on civilians"?
d. It is an
error in law to rely on the Rome Statute in
consideration of whether the mistreatment of prisoners constitutes a crime
against humanity (in relation to the applicant's service as a prison guard at
El Chipote Prison)?
[Reasons, at
para. 55.]
[18]
The
application judge then set out the objections of counsel for the Minister to
the proposed questions, as well as his response to those objections:
56. Counsel
for the Minister submits that none of the proposed questions transcends the
interests of the immediate parties, or contemplates issues of broad
significance, or has not already been answered. More particularly, it was
suggested that in Sumaida v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 10,
the Federal Court of Appeal dealt with the first three questions. I do not
share that reading of the Sumaida case.
In speaking for the Court, Mr. Justice Létourneau noted that some of those
targeted were civilians, and could not be considered terrorists. The question
as certified need not have been and was not answered. Furthermore, in [Gonzalez v. Canada
(Minister of Citizenship and Immigration), [1994] 3
F.C. 646], the Court of Appeal characterized encounters between the
Sandinistas and Contras as incidents of war. Although there has been reference
in the case law to the distinction between war crimes and crimes against
humanity based on the characteristics of the targeted group, it may well be
time to revisit that distinction, in the light of recent international
developments.
57. As to the
fourth question, the Minister submits, at least in so far as it relates to
Mr. Carrasco's situation, that the Rome Statute
is simply a restatement of existing law. That is indeed my opinion. However,
this is an important issue, and that opinion might not be shared.
58. These
questions are interrelated, and at the risk of being somewhat overcautious, I
am prepared to certify all of them.
[19]
The application
judge then raised a question which had not been raised by counsel for
Mr. Carrasco Varela:
59. Although
the general amnesty in Nicaragua was the subject of considerable discussion in
both written and oral submissions, no question was proposed by Mr. Carrasco in
that regard. However, as other questions will be certified, given the
distinction between sections 35 and 36 of IRPA, and the UNHCR Handbook, I propose certifying the following
question myself:
Should
a pardon or general amnesty be taken into account in considering whether a
person is inadmissible on grounds of violating human or international rights
within the meaning of section 35 of the Immigration
and Refugee Protection Act?
THE ISSUE
[20]
Predictably,
the parties' memoranda dealt with the questions certified by the application
judge. However, the discussion between the Court and counsel at the hearing of
this appeal focused on whether the certified questions satisfied the statutory
criteria for certified questions, as qualified by the jurisprudence of this
Court.
[21]
In my
view, the only question that arises on this appeal is whether the application
judge properly exercised his discretion to certify a question. In my opinion,
he did not. As a result, the pre-condition to Mr. Carrasco Varela's right
of appeal has not been met and this appeal must accordingly be dismissed.
ANALYSIS
[22]
As the
application judge recognized in his reasons, a decision of the Federal Court on
judicial review of a decision of the IRB is intended to be final, with no right
of appeal except in one circumstance, namely, where the judge certifies that a
serious question of general importance is involved and the judge states that
question. This is simply a statement of subsection 74(d) of the Act:
74.
Judicial review is subject to the following provisions:
…
(d) an appeal
to the Federal Court of Appeal may be made only if, in rendering judgment, the
judge certifies that a serious question of general importance is involved and
states the question.
[23]
This
disposition fits within a larger scheme designed to ensure that a claimant's
right to seek the intervention of the courts is not invoked lightly, and that
such intervention, when justified, is timely.
[24]
It is
worth remembering that there is no right to judicial review of "any matter
— a decision, determination or order made, a measure taken or a question raised
— under [the] Act" unless leave is first granted by the Federal Court. The
application for leave must be served and filed within 15 days (in the case of a
matter arising in Canada) of the applicant being
notified of the decision or matter. The Act directs the judge hearing the
application for leave to deal with it without delay, and without personal
appearance. There is no appeal from the decision to dismiss an application for
leave. See section 72 of the Act.
[25]
The Act
goes on to stipulate that the application judicial review shall be heard no
sooner than 30 days nor more than 90 days after leave is granted, and that it
is to be disposed of without delay and in a summary way: see subsection 74(b)
of the Act.
[26]
These
measures must be read together with section 231 of the Immigration and
Refugee Protection Regulations, SOR/2002-227, which provides for a stay of
any removal order pending the disposition of judicial proceedings. The result
is that, on the one hand, persons whose status in Canada is in question are
allowed to remain in Canada pending the final disposition
of their recourse to the courts; on the other hand, the law requires that such
recourse be disposed of without delay and in a summary fashion.
[27]
An
integral part of this scheme is the presence of two "gatekeeper"
provisions. The first is the requirement that leave be obtained to commence an
application for judicial review. The second is the absence of a right of appeal
unless a judge of the Federal Court certifies that a serious question of
general importance is raised by the application for judicial review. Given the
statutory stay that flows automatically from access to the courts, these
provisions are designed to ensure that applications that have no merit are
dealt with in a timely manner.
[28]
In the
same way, it is worth noting that section 74 speaks of "a" serious
question of general importance, not of "one or more" serious
questions of general importance. While I would not preclude the possibility
that a single case might raise more than one question of general importance, this
would be the exception rather than the rule. A serious question is one that is
dispositive of the appeal: see Zazai v. Canada (Minister of Citizenship and
Immigration),
2004 FCA 89, 318 N.R. 365 (Zazai), and the cases cited therein at
paragraph 11. There are a limited number of such questions in any appeal.
[29]
Additionally,
a serious question of general importance arises from the issues in the case and
not from the judge's reasons. The judge, who has heard the case and has had the
benefit of the best arguments of counsel on behalf of both parties, should be
in a position to identify whether such a question arises on the facts of the
case, without circulating draft reasons to counsel. Such a practice lends
itself, as it did in this case, to a "laundry list" of questions,
which may or may not meet the statutory test. In this case, none of them did.
[30]
Turning
then to the questions that the application judge certified, the first is:
Are all
prisoners necessarily "civilians" for the purpose of defining a crime
against humanity as per [Mugesara]?
[31]
At
paragraphs 30 and 31 of his reasons, the application judge wrote:
Regardless
how the matter is considered, Mr. Carrasco was rightly ordered deported. The
order states: "The Immigration Division determines that you are a person
described in 35(1)(a) of the Act". Both crimes against humanity and war
crimes are covered.
By the
same token, the prisoners in El Chipote Prison were either Contras or ordinary
political dissidents. It matters not whether Mr. Carrasco's involvement could
be characterized as ill-treatment of prisoners of war or inhumane acts against
a civilian population…
[32]
Clearly,
this question is not dispositive of the appeal. Nor is it a question that the
application judge himself felt it necessary to decide. Referring once again to Zazai,
at paragraph 12:
The corollary
of the fact that a question must be dispositive of the
appeal is that it must be a question which has been raised and dealt with in
the decision below. Otherwise, the certified question is nothing more than a
reference of a question to the Court of Appeal. If a question arises on the
facts of a case before an applications judge, it is the judge's duty to deal
with it. If it does not arise, or if the judge decides that it need not be
dealt with, it is not an appropriate question for certification.
[33]
The second question accepted by the application judge was:
May
the execution of criminals constitute a crime against humanity as being part of
a widespread and systematic attack on civilians?
[34]
If the thrust of this question is to determine whether any
execution of criminals can constitute a crime against humanity, then it is a
question that cannot be answered on this record. If the thrust of the question
is to determine whether the execution of the kidnappers in this case is a crime
against humanity, then it is a question that the application judge did not feel
it necessary to address in his reasons. At paragraph 29 of his reasons, the
application judge wrote:
The
evidence is clear and compelling that the kidnappers were treated as enemies of
the state. Mr. Carrasco claims the President of Nicaragua personally attended
El Chipote Prison. As Mr. Justice MacGuigan said in Ramirez [below], it
does not really matter whether the crime is a war crime or a crime against
humanity. It was a crime committed during the course of what was either a civil
war or civil insurrection. He simply employed the term "international
crime"…
[35]
If the application judge, following the decision of this
Court in Ramirez v. Canada
(Minister of Employment and Immigration), [1992] 2 F.C. 306, found
that "it [did] not really matter whether the crime is a war crime or a
crime against humanity", as he apparently did, then it can hardly be a
question for certification.
[36]
The third question was:
Were
the acts committed by the Sandinistas against the Contras in military or civil
war activities part of a "widespread and systematic attack on civilians"?
[37]
Once again, this question was not considered by the
application judge. Furthermore, it is difficult to see how such a question
could be answered in any meaningful way. Which acts, committed in the course of
hostilities lasting several years, are in issue? How is the answer to that
question relevant to the disposition of this case?
[38]
The fourth question accepted by the judge was:
Is
it an error in law to rely on the Rome Statute in consideration of
whether the mistreatment of prisoners constitutes a crime against humanity (in
relation to the applicant's service as a prison guard at El Chipote Prison)?
[39]
The IRB referred to certain articles of the Rome Statute in
its decision, but it is not clear whether it relied upon those articles in
coming to the conclusion it did. In his decision, the application judge wrote
at paragraph 46 that:
Mr.
Carrrasco submits that he Board fell into error in referring to the Rome
Statute. In my opinion, it is not necessary to consider that submission as
the Statute says nothing new as far as Mr. Carrasco's activities are concerned,
as per Gonzalez, above.
[40]
If the judge did not think it necessary to deal with the
question proposed by counsel, it is difficult to see how it could be a serious
question of general importance.
[41]
The last question was proposed by the application judge
himself. It is:
Should
a pardon or general amnesty be taken into account in considering whether a
person is inadmissible on grounds of violating human or international rights
within the meaning of section 35 of the Immigration and Refugee Protection
Act?
[42]
It would
be difficult to say that a relevant factor – surely a general amnesty is a relevant
factor – should not to be taken into account in determining admissibility under
the Act. This does not rise to the level of a serious question of general
importance.
[43]
Having
found that no serious question of general importance is stated in the certified
questions, what is the status of the appeal? As noted earlier in these reasons,
the requirement that the application judge certify that a serious question of
general importance is involved and that he or she states the question is a gatekeeper
function. Some confusion has arisen with respect to the thrust of that
function by the decision of the Supreme Court in Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, to the effect that,
once a question had been certified, all issues raised by the appeal could be
considered by the Court: see para. 12. It is a mistake to reason that because
all issues on appeal may be considered once a question is certified, therefore
any question that could be raised on appeal may be certified. The statutory
requirement remains as stated in subsection 74(d): there must be a
serious question of general importance. The absence of such a question means
that the pre-condition to the right of appeal has not been met, and therefore
the appeal must be dismissed. To hold otherwise would be to allow the Court of
Appeal to create a right of appeal where the Act has not provided one.
[44]
As a result, I would dismiss the appeal.
"J.D.
Denis Pelletier"
"I
agree
Marc Noël J.A."
"I
agree
M. Nadon J.A."
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