Docket: A-504-14
Citation: 2015 FCA
31
CORAM: NADON
J.A.
GAUTHIER J.A.
BOIVIN J.A.
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BETWEEN:
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WAI HUNG CHUNG
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Appellant
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and
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MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
I note that the appellant, a citizen of the
People’s Republic of China, arrived in Canada in 1989 and became a permanent
resident in July 1991. In 1997, he pleaded guilty to a charge of
conspiracy to traffic heroine in the Unites States and served 10 years in
prison there. Upon his return to Canada in November 2006, two
inadmissibility reports were issued against him under paragraphs 36(1)(b)
(serious criminality) and 37(1)(a) (organized criminality) of the Immigration
and Refugee Protection Act, S.C. 2011, c. 27 (the Act).
[2]
Following a first decision by the Immigration
Division (the panel) ruling the appellant inadmissible on grounds of serious
criminality and organized criminality, upon consent of the parties, the panel’s
conclusion under paragraph 37(1)(a) of the Act was referred back to
the Federal Court for redetermination.
[3]
On October 21, 2013, a new decision was
issued, concluding again that the appellant was inadmissible on grounds of
organized criminality. It should be noted that, before the panel, the appellant
raised all the arguments based on the Canadian Charter of Rights and
Freedoms (the Charter) and that the panel, after reviewing them, rejected
them. It is this decision that was the subject of an application for judicial
review that Beaudry J. of the Federal Court (the judge) dismissed while refusing
to certify the questions proposed by the appellant.
[4]
The appellant submits that this Court has
jurisdiction to hear the appeal under section 27 of the Federal Courts
Act, SOR/98-106, even in the absence of a certified question, since, as
alleged in his notice of appeal, the judge made [translation] “jurisdictional errors”. More specifically, the
judge exceeded his jurisdiction in the following manner: (i) by being “manifestly wrong” on the Charter issues, namely, the
violation of section 7 (among other things, the right to full disclosure
of the evidence) and his right to a remedy for this violation (such as the
evidence being destroyed upon completion of the police investigation held in
the 1990s) under section 24 of the Charter; and (ii) by refusing to
certify the proposed questions regarding section 7 of the Charter, and in
doing so, failing to acknowledge or ignoring a pending case before the Supreme
Court of Canada on similar issues.
[5]
The test applicable to such motions to strike is
well known. The respondent must show that the appeal cannot succeed because it
is plain and obvious that this Court lacks the jurisdiction to hear this
appeal.
[6]
It is plain and obvious, in my opinion, that the
judge did not make a jurisdictional error and that this appeal is not part of
the specific, limited cases where this Court has jurisdiction to hear an appeal
despite 74(d) of the Act. It is clear that the appellant disagrees with
the panel’s and the judge’s analysis of and conclusion on the Charter issues
and believes that the judge should have agreed to certify his questions. However,
since it is my opinion that the judge was not “manifestly
wrong” on the questions before him, nothing distinguishes this matter
from all the cases where the Federal Court makes decisions subject to paragraph 74(d)
of the Act in the context of applications for judicial review of decisions of
the panel involving inadmissibility. Such Charter questions are regularly raised
before the Federal Court in the exercise of its jurisdiction under the Act.
[7]
For these reasons, I would allow the motion and,
consequently, strike the notice of appeal.
“Johanne Gauthier”
“I agree
M. Nadon, J.A.”
“I agree
Richard Boivin, J.A.”
Certified true translation
François Brunet,
Revisor.
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