Docket: A-444-16
Citation:
2018 FCA 22
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CORAM:
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STRATAS J.A.
WOODS J.A.
LASKIN J.A.
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BETWEEN:
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JACOB DAMIANY
LUNYAMILA
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Appellant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS
FOR JUDGMENT
LASKIN J.A.
I.
Overview
[1]
This appeal is from the judgment of Crampton
C.J. of the Federal Court (2016 FC 1199), granting five consolidated
applications by the Minister for judicial review, setting aside the five
corresponding orders issued by members of the Immigration Division of the
Immigration and Refugee Board releasing the appellant from immigration
detention on conditions, and remitting the question of release or continued
detention to Member Cook of the ID, who made the most recent of the five
orders.
[2]
In both their written and their oral submissions
the parties focused on the application judge’s decision with respect to the
order of Member Cook, which superseded the four earlier orders. It is
appropriate to do the same in these reasons.
[3]
However, my doing so leads me reluctantly but
inescapably to the conclusion that this Court lacks jurisdiction to decide the
appeal. The question as certified by the application judge, on which this
Court’s jurisdiction depends, does not in my respectful view meet the
well-established criteria for certification, and reformulation of the question would
not render it compliant. I say “reluctantly”
because the appeal was well and fully argued on the merits, and because
underlying the certified question may well be a serious legal question of
general importance that, as the application judge suggested, calls for further
judicial consideration. But the question as framed is not dispositive of the
appeal as it was argued, so that deciding the appeal would take the Court
outside the role that Parliament envisaged for it in immigration matters. I see
no alternative therefore but to dismiss the appeal.
[4]
In explaining why I reach this conclusion, I
will first briefly outline the scheme of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, as it relates to removal orders,
detention and release. Next, I will set out the relevant background, addressing
the circumstances relating to the appellant’s detention, Member Cook’s
decision, and the decision on judicial review. I will then consider in more
detail the requirements that a certified question must meet and how in my view
those requirements are not met in this case. I appreciate that all of this is a
rather lengthy prelude to a decision that ultimately does not address the
merits of the appeal, but the context may nonetheless prove helpful in
grounding the disposition that I propose.
II.
Removal, detention and release under the IRPA
[5]
The Immigration and Refugee Protection Act
establishes a framework for immigration to Canada and the grant of refugee
protection. The objectives of the IRPA are set out in subsection 3(1). By
paragraphs 3(1)(h) and 3(1)(i), they include the protection of
public health and safety and the security of Canadian society and the promotion
of international justice and security by fostering respect for human rights and
denying access to Canadian territory to persons who are criminals or security
risks.
[6]
By sections 34 to 37 of the IRPA, a foreign
national may be inadmissible and liable to removal on grounds of security,
violation of human or international rights, serious criminality, criminality or
organized criminality. A removal order is enforceable if it has come into force
and is not stayed (subsection 48(1)). If a removal order is enforceable, the
foreign national against whom it is made “must leave
Canada immediately and the order must be enforced as soon as possible” (subsection
48(2)).
[7]
The Act authorizes the arrest and detention of a
permanent resident or foreign national who there are reasonable grounds to
believe is inadmissible and a danger to the public or unlikely to appear for
removal from Canada or at a proceeding that could lead to removal (subsection
55(1)).
[8]
Within 48 hours of arrest, the Immigration
Division of the Immigration and Refugee Board is required to review the reasons
for detention (subsection 57(1)). Following this initial review, the ID must
conduct additional reviews within seven days and at least once every 30 days
thereafter (subsection 57(2)).
[9]
In a detention review, the ID must assess
whether there are grounds for detention: whether, among other things, the
detainee is a danger to the public, a flight risk, or a foreign national whose
identity has not been established. Unless it is satisfied that one or more of
the specified grounds is made out, it must order the detainee’s release
(subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee
Protection Regulations, SOR/2002-227, the assessment whether there is a
flight risk includes consideration of the detainee’s voluntary compliance with
any previous departure order and, therefore, compliance with subsection 48(1)
of the IRPA, which as set out above requires a foreign national to leave Canada
immediately as soon as a removal order becomes enforceable.
[10]
By subsection 247(1) of the Regulations, in
assessing whether the identity ground is established, the ID must consider
among other things the detainee’s cooperation, including whether the detainee
provided or assisted the Department of Citizenship and Immigration in obtaining
evidence of identity, or provided his or her date and place of birth and
parents’ names. Subsection 16(3) of the Act authorizes an immigration officer
to require or obtain from a detainee any evidence that may be used to establish
identity.
[11]
If any of the specified grounds of detention are
established, the ID is obliged to consider the factors set out in section 248
of the Regulations before a decision is made on detention or release: (a) the
reason for detention; (b) the length of time in detention; (c) whether there
are any elements that can assist in determining the length of time that
detention is likely to continue and, if so, that length of time; (d) any
unexplained delays or unexplained lack of diligence caused by the Department or
the person concerned; and (e) the existence of alternatives to detention. These
factors, which originated in the decision in Sahin v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at
para. 31, were incorporated into the Regulations in 2002.
[12]
If the ID orders release, it may impose any
conditions that it considers necessary (IRPA, subsection 58(3)). The person
concerned may apply to vary these conditions on the basis that they are no
longer necessary to ensure compliance with the Act (Tursunbayev v. Canada
(Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th)
302 at para. 31).
III.
The appellant
[13]
The appellant came to Canada in 1994, and was
granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila,
a citizen of Rwanda, born there in September 1976. However, his identity has
not been established. Among other things, he has no Rwandan identity documents,
and the file associated with his refugee claim was destroyed years ago in
accordance with standard Immigration and Refugee Board document retention
policies.
IV.
Criminality and danger to the public
[14]
In the period from January 1999 to June 2013,
Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It
appears that a number of the convictions were connected to alcohol addiction
and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible
for criminality under paragraph 36(2)(a) of the IRPA. A deportation
order was issued against him in August 2012. After a conviction for sexual
assault, he was also found inadmissible for serious criminality under paragraph
36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under
paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the
public and that the risk to the Canadian public outweighed any risk he would
face on return to Rwanda and any humanitarian and compassionate considerations.
Leave to seek judicial review was denied.
V.
Detention history
[15]
Mr. Lunyamila was arrested and detained under
section 55 of the IRPA in June 2013. His detention was initially continued on
the grounds that he was both a flight risk and a danger to the public. On the
second 30 day review, he was ordered released on conditions. The conditions
included a requirement that he live at a specified addiction rehabilitation
facility, complete its three month program and abide by its rules and
regulations. However, he left the facility after two days and was rearrested.
He has remained in detention since September 2013.
[16]
Until January 2016, successive 30 day reviews
resulted in orders for continued detention, at first on flight risk and danger
grounds, and then on identity grounds as well. However, beginning in January
2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of
these orders was stayed, and two of them – those issued in January and February
2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A
further five release orders, including the order made by Member Cook, were the
subject of the consolidated applications that led to this appeal.
VI.
Failure to cooperate in removal
[17]
Following the issuance of the danger opinion in
May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr.
Lunyamila did not have a Rwandan passport or other travel document, the Canadian
Border Services Agency contacted the Rwandan High Commission to ascertain the
requirements for him to obtain one. The CBSA was informed that the requirements
included providing certified copies of Rwandan identity documents and a
statutory declaration affirming a willingness to return to Rwanda.
[18]
Mr. Lunyamila had stated that he did not have
the required identity documents. Despite ten separate requests by CBSA officers
– in June, July, November and December 2014, and February, May, July, August,
November and December 2015 – he also refused to sign the required statutory
declaration. In response to several of these requests, he stated, in effect,
that he would never sign and would never cooperate with his deportation.
[19]
In November 2013 and in 2014, the CBSA received
information suggesting that Mr. Lunyamila was actually a person with a
different name and birth date who was a citizen of Tanzania. However, the
CBSA’s investigation of this information led to a different individual, and the
possibility that Mr. Lunyamila was Tanzanian was not pursued further at that
time.
[20]
The CBSA recommenced its investigation in
February 2015 when it received further information linking Mr. Lunyamila to
Tanzania. It explored retaining a private investigator, made inquiries of the
Tanzanian police, and arranged for a linguistic analysis, which was conducted
in May 2016. The analysis concluded that it was “very
likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also
sent fingerprints for analysis by Tanzanian authorities, and arranged an
interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.
[21]
Mr. Lunyamila has cooperated to some degree with
this investigation, including by participating in the linguistic analysis, but
he has also provided contradictory and nonsensical information in response to
inquiries about his connection to Tanzania.
VII.
Member Cook’s decision
[22]
In September 2016, Member Cook made an order for
Mr. Lunyamila’s release from detention, subject to conditions. Although the
member was satisfied that all three grounds for continued detention asserted by
the Minister – danger, flight risk and identity – were made out, he found that
the risks could be sufficiently mitigated by the conditions that he imposed.
[23]
In concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very
unlikely that he would appear voluntarily for removal if released, the member
observed that Mr. Lunyamila had done everything in his power to prevent removal
to Rwanda, including refusing to sign the declaration required for a
Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the
member stated, that without his cooperation in signing the declaration the CBSA
could not remove him.
[24]
With respect to identity, the member stated that
“the Minister was making reasonable efforts to
establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was]
capable of uncovering significant evidence,” and stated that it would be
improper for him to speculate on what the investigation might uncover. He found
the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.
[25]
Having concluded that the three grounds for
continued detention were established, Member Cook then turned to the factors
set out in section 248 of the Regulations. He found that the first factor, the
grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila
had been detained because he was a danger to the public, he was a flight risk,
and his identity could not be established. The member stated that he had given
this factor significant weight, since the danger factor alone was justification
for a lengthy detention.
[26]
The member analyzed the second and third factors
– the length of time in detention and whether the length of time that detention
is likely to continue can be ascertained – together. He found that detention
for three years amounted to lengthy detention, and that the length of Mr.
Lunyamila’s further detention could not reasonably be anticipated. He concluded
that these factors favoured release.
[27]
Member Cook noted that the reason for both the
lengthy detention and the inability to ascertain the duration of continued
detention was the same: the Minister did not have a valid travel document that
would permit Mr. Lunyamila’s removal. His case was now “at
a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have
any prospect of obtaining a Rwandan travel document, but he had refused to
cooperate and had stated that he would never cooperate. Although the member
acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could
lead to a valid travel document, he also noted that cooperation would not
guarantee removal because Mr. Lunyamila also lacked the identity documents that
Rwanda appeared to require. The Minister was unable to state whether Rwandan
authorities would waive this requirement. As for the potential removal to
Tanzania, the member found there was no way to reasonably anticipate whether Mr.
Lunyamila was actually Tanzanian and how long a removal to Tanzania might take.
There was therefore no timeline for the anticipated conclusion of the
immigration process: Mr. Lunyamila’s “detention moving
forward [was] indefinite.”
[28]
The member determined that responsibility for
the lengthy detention and uncertainty as to the length of future detention
should be apportioned equally to both parties. He assigned a large portion of
responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s
consistent refusal to cooperate in signing the declaration had stalled his
removal at the travel document acquisition stage since 2014, and suggested that
the detention might have already ended had he cooperated.
[29]
However, the member also found that the Minister
must share the responsibility. Despite the “stalemate”
and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the
Minister had not undertaken alternative measures to remove him. The member
acknowledged that there might not in fact be any alternatives. He also
acknowledged that the Minister was now focused on Tanzania as a possible
alternate destination for removal. However, he was critical of the Minister’s
delay in pursuing the possibility of Tanzanian identity when information to
this effect first came to light in 2013. The member accordingly found that the
factor of delay and lack of diligence was neutral and favored neither continued
detention nor release.
[30]
The member then turned to the last factor,
alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds
for detention that have been established.” He expressed his belief that
if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree
where [his] release pending removal can be manageable.”
[31]
Member Cook set out a total of nine conditions.
Condition 1 was that prior to release Mr. Lunyamila sign the declaration
requested by Rwanda. Member Cook rejected the suggestion made by another ID
member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past
refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a
criminal and a danger to the public, this condition and Mr. Lunyamila’s
deportation were consistent with the immigration objectives, set out in
paragraphs 3(1)(h) and (i) of the IRPA, of protecting public
health and safety, maintaining the security of Canadian society, and denying
criminals access to Canadian society. The condition was also consistent with
the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave
Canada immediately, and the obligation on the CBSA to enforce the removal order
as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law.”
[32]
The other conditions that Member Cook imposed included
cooperation with an interview with Tanzanian officials and with any additional
CBSA investigation into his identity, acceptance prior to release in a
residential drug and alcohol treatment facility and completion of its program,
on completion of that program making efforts to enrol in a community-based
violence prevention and anger management program and completing the program
once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and
compliance with any physician-prescribed treatment program.
VIII.
The decision on judicial review
[33]
In his decision on judicial review, the
application judge accepted the parties’ agreement that the appropriate standard
of review was reasonableness. He considered the order made by Member Cook after
having concluded that he would set aside as unreasonable the other four orders
that were the subject of the consolidated applications. He determined that
Member Cook’s order was also unreasonable.
[34]
The application judge framed the fundamental
issue raised by the applications as “how to resolve the
tension between […] an immigration detainee’s refusal to cooperate with a
validly issued order for removal from Canada, and […] the length of detention
and uncertainty regarding the duration of future detention that result, in
whole or in part, from that refusal.”
[35]
He expressed his resolution of this tension as
follows:
where such a
refusal has the result of impeding any steps that may realistically contribute
in a meaningful way to effecting the removal of a detainee who has been
designated to be a danger to the public, the tension must be resolved in favour
of continued detention. The same is true where it has been determined that a
detainee is unlikely to appear for removal from Canada.
[36]
The application judge reasoned that if it were
otherwise, a detainee who was a danger or a flight risk could by the refusal to
cooperate produce or contribute to producing a “stalemate,”
resulting in release and the infliction on the public of the associated risk.
This would allow detainees to “take the law into
[their] own hands,” in a manner that Parliament could not have intended.
[37]
In considering one of the other release orders
that was the subject of the consolidated applications, the application judge addressed
the suggestion made by the ID member who had granted the order that there was a
conflict between two lines of cases in the Federal Court – one holding that
indefinite detention cannot be treated as a determinative factor in a detention
review and the other, that length of detention should be given substantial
weight in the balancing process under section 248. He characterized these cases
as consistent to the extent that they all properly saw it as necessary to
consider and reasonably weigh all of the section 248 factors. But, he stated, “where the detainee is a danger to the public, the scheme of
the IRPA and the Regulations contemplates that substantial weight should be
given to maintaining the detainee in detention.”
[38]
The application judge went on in his discussion
of the Federal Court case law to address a further tension identified by the
member – that between cases in which the Court had set aside ID release
decisions as unreasonable where the detainee’s non-cooperation was the sole
cause of the indefinite nature of the detention, and those in which the Court
had found unreasonableness in the failure of the member to consider factors other
than the detainee’s non-cooperation. He stated that, in his view, “the scheme of the IRPA and the Regulations […] requires
resolving a stalemate that has been produced by the detainee’s failure to fully
cooperate with the Minister’s removal efforts, in favour of continued
detention.”
[39]
The application judge found Member Cook’s
decision unreasonable in several respects. First, there was an inconsistency
between Member Cook’s conclusion that Mr. Lunyamila’s detention had become
indefinite and the member’s own findings as to the prospects of removing Mr.
Lunyamila to Rwanda or Tanzania. The member had also recognized that a large
portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate,
and that his non-cooperation had, in addition, contributed significantly to the
uncertainty of the timing of removal. It was therefore unreasonable for the
member to rely on delay and uncertainty to find that the detention had become
indefinite, and then to treat these factors as favouring release: this amounted
to giving Mr. Lunyamila credit for factors for which he had been largely
responsible.
[40]
The application judge also found unreasonable
the member’s decision to give a neutral weighting to the fourth section 248
factor, relating to delay and lack of diligence. He accepted that the Minister
could have been more diligent in making efforts to remove Mr. Lunyamila to
Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially
undermined those efforts. This factor should therefore, the application judge
stated, have weighed strongly in favour of continued detention. The application
judge found further unreasonableness in Member Cook’s determination that the
Minister should have done more sooner to pursue the possibility of removal to
Tanzania.
[41]
The application judge went on to consider the
conditions of release set out by Member Cook. The application judge applauded
Member Cook for including the pre-release condition that Mr. Lunyamila sign the
declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release
while continuing to refuse to cooperate would, the application judge stated, be
“tantamount to letting him take the law into his own
hands, and dictate which laws of Canada he will follow and which ones he will
not follow.” However, he agreed with the Minister that the conditions taken
together were unreasonable because they did not adequately address Mr.
Lunyamila’s violent tendencies and his flight risk. He stated that to be
reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would
have to “virtually eliminate” the risks that he
presented.
[42]
Having concluded that
the conditions of release taken as a whole were unreasonable, the application
judge set aside Member Cook’s order, along with the other four orders that were
subjects of the consolidated applications. Based on Member Cook’s recent
familiarity with Mr. Lunyamila’s situation and his understanding of the
statutory scheme and many of the relevant legal principles, the application
judge remitted the matter back to Member Cook for reconsideration in accordance
with his reasons.
IX.
The certified question
[43]
Neither party proposed a question for
certification under paragraph 74(d) of the IRPA. Both were of the view
that the case was grounded in its particular facts and therefore presented no
question of general importance. However, the application judge saw the
differences of view in the Federal Court’s case law as giving rise to a
question of general importance warranting this Court’s consideration. He
therefore sought the parties’ comments on a question that he proposed. The
parties maintained their position that the proposed question was not suitable
for certification, because the appropriate balancing of the factors in section
248 will vary depending on the circumstances of each case. The application
judge nonetheless certified the following question:
Can a person who
has been detained for removal from Canada pursuant to a valid removal order and
who has been found either to be a danger to the public or unlikely to appear
for his removal from Canada, avoid continued detention by (i) refusing to take
steps that may realistically contribute in a meaningful way to effecting such
removal, and then (ii) relying on the length of his detention to argue that his
release from detention is warranted, assuming there has been no significant
change in other factors to be considered in the assessment contemplated by s.
248 of the Immigration and Refugee Protection Regulations?
X.
The requirement of a properly certified question
[44]
By paragraph 74(d) of the IRPA, this
Court has jurisdiction to hear an appeal from the judgment of the Federal Court
on an application for judicial review with respect to any matter under the Act
only if, in rendering judgment, the Federal Court “certifies
that a serious question of general importance is involved and states the
question.”
[45]
As this Court observed in Varela v. Canada
(Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R.
129 at para. 23, this provision “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.” Other elements of the scheme include the requirement in
section 72 to obtain leave before pursuing an application for judicial review
in the Federal Court.
[46]
This Court recently reiterated in Lewis v.
Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36,
the criteria for certification. The question must be a serious question that is
dispositive of the appeal, transcends the interests of the parties and raises
an issue of broad significance or general importance. This means that the
question must have been dealt with by the Federal Court and must arise from the
case itself rather than merely from the way in which the Federal Court disposed
of the application. An issue that need not be decided cannot ground a properly
certified question (Lai v. Canada (Public Safety and Emergency Preparedness),
2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is
in the nature of a reference or whose answer turns on the unique facts of the
case be properly certified (Mudrak v. Canada (Citizenship and Immigration),
2016 FCA 178, 485 N.R. 186 at paras. 15, 35).
[47]
Despite these requirements, this Court has
considered that it is not constrained by the precise language of the certified
question, and may reformulate the question to capture the real legal issue
presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA
175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on
this point); Canada (Citizenship and Immigration) v. Ekanza Ezokola,
2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, affirmed without comment on
the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40,
[2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the
criteria for a properly certified question.
XI.
Appropriateness of the certified question
[48]
At the hearing of the appeal, the Court raised
with counsel for both parties concerns about the certified question as framed
(reproduced at paragraph 43 above). These included concerns that the question
might be in the nature of a “straw person,” in
that it would admit of only one reasonable answer. However, the Court also recognized
that circumstances like those in this case might give rise to a serious legal
issue of general importance, and proposed possible alternative formulations for
comment. Counsel were content that the Court try to reformulate the question.
The Court decided that it would proceed with the hearing on the merits, leaving
the possible reformulation of the certified question to be considered further during
the Court’s deliberations.
[49]
With the benefit of further consideration, I
find myself unable to conclude that the question as certified meets the
criteria for certification, or that the question can be reformulated so as to
address its deficiencies. The fundamental problem as I see it is that the
question does not arise from the facts of this case as it developed. The
question asks, in essence, whether an immigration detainee can avoid continued
detention by failing to cooperate with removal. But Member Cook’s order did not
permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as
a pre-release condition the requirement that Mr. Lunyamila do what he has so
far refused to do – sign the declaration requested by Rwanda.
[50]
Counsel’s arguments before us were directed to
the reasonableness of this order, including all of its conditions. Counsel for
Mr. Lunyamila argued that the order as a whole struck a careful and factually
supported balance, that the application judge showed insufficient deference in
finding it unreasonable, and that it should not have been set aside. Counsel
for the Minister submitted that the application judge was right to find the
order unreasonable, but for reasons unrelated to the pre-release condition – a
condition which, as noted above, the application judge said he applauded. In sum,
therefore, neither party took issue with the pre-release condition of
cooperation.
[51]
In light of my appreciation of the issue raised
by the application judge’s formulation and counsel’s comments, I considered proposing
that the certified question be reformulated along the following lines:
In a review under
section 57 of the Immigration and Refugee Protection Act of the
detention of a person against whom a removal order has been made, is the
Immigration Division of the Immigration and Refugee Board entitled to rely on
the factors set out in paragraphs 248(b) and (c) of the Immigration and
Refugee Protection Regulations (“the length of time in detention” and
“whether there are any elements that can assist in determining the length of
time that detention is likely to continue and, if so, that length of time”) as
factors favouring release where the length of time in detention and the length
of time that detention is likely to continue are attributable in whole or in
part to the failure of the detainee to cooperate in his or her removal from
Canada?
[52]
However, given the terms of Member Cook’s order
and the positions of the parties, it would not be necessary to decide this
question either in order to decide the appeal. The reformulation could also be
regarded as deficient on the basis that it is a question whose answer would
turn on the unique facts of each case – for example, on the nature and extent
of the non-cooperation – or that it would transform this appeal into a
reference. I therefore came to the view that reformulation would not be
appropriate.
[53]
For these reasons, I conclude that the certified
question is not sufficient to give this Court jurisdiction to decide the appeal,
which must therefore be dismissed. I do not see “special
reasons” within the meaning of rule 22 of the Federal Courts Citizenship,
Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an
award of costs.
XII.
Proposed disposition
[54]
I would dismiss the appeal without costs.
“J.B.Laskin”
“I agree.
David Stratas J.A.”
“I agree.
J. Woods J.A.”
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