Alexander v. Canada (Solicitor General), 2006 FCA 386

Date: 20061128

Docket: A-416-05

Citation: 2006 FCA 386

 

CORAM:       LINDEN J.A.

                        EVANS J.A.

                        MALONE J.A.

 

BETWEEN:

LENA ALEXANDER, CRYSTAL ROBERTS

and DAMEON ALEXANDER by their

litigation guardian LENA ALEXANDER

 

Appellants

and

 

THE SOLICITOR GENERAL OF CANADA

 

Respondent

 

 

Heard at Toronto, Ontario, on November 28, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on November 28, 2006.

 

REASONS FOR JUDGMENT OF THE  COURT BY:                                               LINDEN J.A.

 

Date: 20061128

Docket: A-416-05

Citation: 2006 FCA 386

 

CORAM:       LINDEN J.A.

                        EVANS J.A.

                        MALONE J.A.

 

BETWEEN:

LENA ALEXANDER, CRYSTAL ROBERTS

and DAMEON ALEXANDER by their

litigation guardian LENA ALEXANDER

 

Appellants

and

 

THE SOLICITOR GENERAL OF CANADA

 

Respondent

 

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on November 28, 2006)

LINDEN J.A.

Introduction

[1]               This is an appeal by Lena Alexander, Crystal Roberts, and Dameon Alexander from a decision of the Federal Court (Dawson J.), dated August 23, 2005, reported as 2005 FC 1147, which upheld two decisions of the removals officers.  In the first decision, dated November 1, 2004, the removals officer found that an interim order granting her sole custody of her children did not operate as a statutory stay pursuant to subsection 50(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). In the second decision, dated January 26, 2005, the removals officer denied Ms. Alexander’s application to defer the execution of her removal order.

 

[2]               The Applications Judge in this case certified a question of Law that involved the interpretation of subsection 50(a) of IRPA. Several other issues, including some constitutional questions, were raised by the appellants.

 

[3]               Following that, after several unsuccessful tries, a statutory stay was issued on compassionate and humanitarian grounds pursuant to section 233 of the IRPA Regulations, allowing Ms. Alexander to remain in Canada with her two Canadian-born children, rendering this appeal moot.

 

[4]               We were not persuaded by counsel that the Borowski conditions, which allow a Court to exercise its discretion to decide a question that is moot in special circumstances, were met in this case.

 

[5]               The Applications Judge’s reasons for decision are clear and not inconsistent with other jurisprudence. The certified question here does not seem to us to be elusive of review, as is indicated by the existence of other cases raising this issue that have been adjourned pending the decision in this appeal.

 

[6]               The constitutional issues raised in this case, as agreed by counsel, should be left for another case, where the facts require a resolution of the issues by this Court.

[7]               We note that the custody order in this case, with the knowledge of the Ontario Court of Justice Judge issuing the order, was sought solely in the attempt to stay Ms. Alexander’s removal from Canada, not the usual context in which custody orders are sought and made.

 

[8]               The appeal will, therefore, be dismissed.

 

 

     “A. M. Linden”

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                                                              A-416-05

 

APPEAL FROM THE ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON DATED AUGUST 23, 2005, DOCKET NOS. IMM-9107-04 AND IMM-500-05

 

STYLE OF CAUSE:                                                              Lena Alexander, Crystal Roberts and Dameon Alexander

                                                                                                by their litigation guardian

                                                                                                Lena Alexander v. The Solicitor General of Canada

 

PLACE OF HEARING:                                                        Toronto, Ontario

 

DATE OF HEARING:                                                          November 28, 2006

 

REASONS FOR JUDGMENT

OF THE COURT BY:                                                           Linden, Evans & Malone JJ.A.

 

DELIVERED FROM THE BENCH BY:                            Linden J.A.

 

 

APPEARANCES:

 

Carole Simone Dahan Amina Sherazee	FOR THE APPELLANTS
Greg George Alison Engel-Yan	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Refugee Law Office Toronto, Ontario And Downtown Legal Services Toronto, Ontario	FOR THE APPELLANTS
John H. Sims Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT

 

Date: 20061128

Docket: A-416-05

 

Toronto, Ontario, November 28, 2006

 

CORAM:       LINDEN J.A.

                        EVANS J.A.  

                        MALONE J.A.

BETWEEN:

LENA ALEXANDER, CRYSTAL ROBERTS

and DAMEON ALEXANDER by their

litigation guardian LENA ALEXANDER

 

Appellants

and

 

THE SOLICITOR GENERAL OF CANADA

 

Respondent

 

JUDGMENT

 

            The appeal is dismissed.

                                                                                                                                                                                         “A. M. Linden”