Bouttavong v. Canada (Minister of Citizenship and Immigration), 2003 FCT 362

Date: 20030327

Docket: IMM-1254-02

Neutral citation: 2003 FCT 362

BETWEEN:

                                                             MYSAY BOUTTAVONG

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

O'KEEFE J.

[1]                 This is an application for judicial review of a decision of a delegate of the Minister of Citizenship and Immigration finding the applicant to be a danger to the public in Canada pursuant to subsection 70.(5) and paragraph 46.01(1)(e) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.

[2]                 At the commencement of the hearing, the parties agreed to argue only the issue of mootness of the application.

[3]                 The applicant seeks an order of certiorari quashing the decision that he constitutes a danger to the public in Canada.

Background

[4]                 The applicant, Mysay Bouttavong was born in Laos. On April 16, 1991 he came to Canada as a government-sponsored displaced person.    He became a permanent resident. He is not a Canadian citizen.

[5]                 On November 27, 2000, the applicant was convicted of trafficking cocaine contrary to subsection 5.(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 and of unlawfully obtaining for consideration the sexual services of a person under the age of 18 years ("juvenile prostitution") contrary to subsection 212.(4) of the Criminal Code, R.S.C. 1985, c. C-46.

[6]                 The applicant's convictions stemmed from his involvement in a "crack house". At the house, girls between the ages of approximately 12 and 15 were befriended by older men and invited to use crack cocaine. Initially, the crack cocaine was supplied without conditions. Once the girls became addicted, the men would demand sexual acts in exchange for the drug. The applicant was 40 years old when he engaged, on two occasions, in sexual intercourse with a 14 year old girl in exchange for crack cocaine.

[7]                 For his two convictions, the applicant was sentenced to two, three-year terms of incarceration to run concurrently, commencing November 27, 2000.

[8]                 On April 5, 2001, Debbie Jacobucci, an immigration officer at the Ministry of Citizenship and Immigration in Winnipeg, Manitoba, signed a "Report under Section 27 of the Immigration Act", reporting the convictions of the applicant to the Deputy Minister of Citizenship and Immigration, and recommending an inquiry.

[9]                 By letter dated April 17, 2001, the applicant received "Notice of intention to seek the opinion of the Minister pursuant to subsection 70.(5) and subparagraph 46.01(1)(e)(iv) of the Immigration Act that you are a danger to the public in Canada".

[10]            The letter, signed by John Nychek, manager of Citizenship and Immigration in Winnipeg, Manitoba, states:

If the Minister is of the opinion that you are a danger to the public in Canada, under subsection 70(5) of the Immigration Act, you will not have a right to appeal a deportation order to the Immigration Appeal Division of the Immigration and Refugee Board and pursuant to subparagraph 46.01(1)(e)(iv) of the Act, if you have made or intend to make a refugee claim it will not be referred to the Convention Refugee Determination Division of the Immigration and Refugee Board for determination.

. . .

[11]            The letter provided a list of the material to be provided to the Minister for consideration and included a copy of the same material. Two of the documents listed were re-sent on May 14, 2001 as they were originally missing the signature of the manager. The letter also invited the applicant to make submissions regarding whether or not he is a danger to the public, whether compelling humanitarian or compassionate considerations are present in his case and the extent to which his life or freedom would be threatened by removal from Canada. The applicant made submissions in response.

[12]            The letter, the accompanying material, and the applicant's submission were forwarded to the Case Management Branch in Ottawa. Debbie Jacobucci, immigration officer, and John Nychek, manager, at the Ministry of Citizenship and Immigration in Winnipeg, Manitoba, recommended that the Minister be asked for a public danger opinion. The recommendation was signed by Debbie Jacobucci on May 9, 2001 and by John Nychek on June 22, 2001.

[13]            On July 18, 2001 a "Request for Minister's Opinion" was prepared by an analyst. On July 19, 2001, a senior analyst indicted his concurrence with the recommendation to seek a danger opinion from the Minister. This report was sent to the applicant who then made further submissions on October 15, 2001.

[14]            On February 15, 2002, a delegate of the Minister indicated that she had formed the opinion that the applicant constituted a danger to the public in Canada pursuant to subsection 70.(5) and paragraph 46.01(1)(e) of the Immigration Act, supra. By letter dated February 22, 2002, from immigration officer, Debbie Horoshok (formerly Jacobucci), the applicant was informed of this decision.

[15]            The Minister's Opinion stated:

In forming my opinion, I have considered the Ministerial Opinion Report and the documentary evidence presented by local Immigration officials to support their recommendation that Mysay BOUTTAVONG, born October 10, 1958, citizen of Laos, constitutes a danger to the public pursuant to subsection 70(5) and paragraph 46.01(1)(e) of the Immigration Act, as well as the information contained in the Request for Minister's Opinion report dated July 19, 2001 and supporting material. I have also carefully considered the information received from the client/Counsel received May 7, 2001, including his final submissions dated October 15, 2001, which is addressed in the disclosure page, as well as any and all humanitarian and compassionate considerations that may exist in this case. The information presented by the client/Counsel has failed to persuade me that the recommendation forwarded by local Immigration officials that Mysay BOUTTAVONG constitutes a danger to the public should not be followed in this case. I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Mysay Bouttavong constitutes a danger to the public in Canada.

[16]            On April 10, 2002 an inquiry was held and the applicant was ordered deported. The applicant filed a notice of appeal on April 10, 2002. On April 19, 2002, the applicant was scheduled to have an interview with a senior immigration officer regarding his claim to be a Convention refugee.

Applicant's Submissions

[17]            The applicant argued that this matter was moot and cited sections 112 to 114 of IRPA, supra in support of his argument.

Respondent's Submissions

[18]            In the respondent's further memorandum of argument, the respondent submits that this application became moot on the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") on June 28, 2002. First, the respondent submits there is no longer a live controversy or concrete dispute now that IRPA, supra has replaced the Immigration Act, supra.    Specifically, the respondent submits that pursuant to section 64 and section 101 of IRPA, supra, the applicant is not eligible to make a refugee claim, and has no right of appeal to the Immigration Appeal Division. As such, the respondent submits whether the Minister erred in finding the applicant constitutes a danger to the public in Canada pursuant to paragraph 46.01(1)(e) and subsection 70.(5) of the Immigration Act, supra is purely an academic question and is therefore moot. Second, the respondent submits the Court should not exercise its discretion to hear this judicial review application.

[19]            Issues

1.          Is the matter moot?

2.          If the matter is moot, should the Court exercise its discretion and hear the matter?

Relevant Statutory Provisions

[20]            The relevant statutory provisions of the Immigration Act, supra, state as follows:

[21]            The relevant statutory provisions of IRPA, supra, state as follows:

[22]            The relevant statutory provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 state as follows:

[23]            The relevant statutory provisions of the Controlled Drugs and Substances Act, supra state as follows:

[24]            The relevant statutory provisions of the Criminal Code, supra state as follows:

Analysis and Decision

[25]            Issue 1

Is the matter moot?

The respondent has submitted that the provisions of IRPA have made the applicant's application moot. The decision under review was made pursuant to subsection 70.(5) and paragraph 46.01(1)(e) of the Immigration Act, supra.

[26]            In any discussion of mootness, reference must be made to the Supreme Court of Canada decision of Borowoski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The Court stated at page 353:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be presented not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant.

[27]            Following this two-step procedure it is first necessary "to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic". I will repeat certain of the relevant provisions of the legislation for ease of reference.

[28]            Subsection 46.01(e) of the Immigration Act, supra provides that a person found to constitute a danger to the public in Canada is not eligible to have a claim determined by the Refugee Division.

[29]            Subsection 70.(5) of the Immigration Act, supra provides that a person found to constitute a danger to the public in Canada has no appeal right to the Appeal Division if a deportation order or a conditional deportation order is made against them.

[30]            IRPA, supra has replaced the Immigration Act, supra. The Regulations state:

[31]            IRPA, supra makes no provision for a decision or act finding the applicant to be a danger to the public in Canada. As such, if the decision of the Minister, finding the applicant to be a danger to the public in Canada pursuant to paragraph 46.01(1)(e) and subsection 70.(5) and of the Immigration Act, supra, is referred back by the Federal Court, no determination shall be made.

[32]            Under the Immigration Act, supra, the Minister could find the applicant to be a danger to the public in Canada as the Minister did in this case. However, under IRPA, supra, the concept of finding an applicant to be a danger to the public in Canada has been replaced by the concept of serious criminality found in subsection 36.(1) of IRPA, supra.    Subsection 36.(1) of IRPA, supra states:

[33]            Paragraph 101.(1)(f) and paragraph 101.(2)(a) of IRPA,supra state:

Under paragraph 5.(3)(a) of the Controlled Drugs and Substances Act, supra the applicant's conviction for trafficking cocaine carried with it a potential sentence of life imprisonment. The applicant was sentenced to a three-year term of incarceration for this conviction. Therefore, even if the applicant is successful on his judicial review application, he would still be ineligible to have a claim determined by the Refugee Protection Division.

[34]            Section 64 of IRPA, supra states:

For the applicant's convictions, he was sentenced to two, three-year terms of incarceration to run concurrently. Accordingly, section 64 of IRPA, supra would apply to the applicant and he would have no right to appeal to the Immigration Appeal Division. Therefore, even if the applicant is successful on this judicial review application, he would still have no appeal right to the Immigration Appeal Division.

[35]            No matter what the decision on the main judicial application, paragraph 101.(1)(f) and subparagraph 101.(1)(2)(a) of IRPA, supra apply to the applicant and he would not be able to apply to the Refugee Protection Division or take an appeal to the Immigration Appeal Division.

[36]            The applicant raised sections 112 to 114 of IRPA, supra in response to the mootness issue. These sections read as follows:

I am of the view that an applicant can still avail himself of these provisions even if the application is found to be moot.

[37]            In summary, I am of the view that the issue of whether the applicant constitutes a danger to the public pursuant to paragraph 46.01(1)(e) and subsection 70.(5) of the Immigration Act, supra is now academic. First, if the decision of the Minister is referred back by the Federal Court, under subsection 350.(2) of the Regulations, supra, no determination shall be made. Second, under sections 101 and 64 of IRPA, supra, the applicant will no longer be eligible to have a claim determined by the Refugee Protection Division, nor have an appeal right to the Immigration Appeal Division. The matter is moot.

[38]            Issue 2

If this application is moot, should the Court still exercise its discretion to hear the matter?

The Supreme Court of Canada in Borowoski, supra outlined the following factors for a court to consider when deciding whether or not to exercise its discretion to hear a matter:

1.          A court's competence to resolve legal disputes is rooted in the adversary system;

2.          The concern for judicial economy; and

3.          The need for the court to demonstrate a measure of awareness of its proper law making function.

[39]            Under the first factor, the Supreme Court of Canada Borowoski, supra at pages 358 to 359 stated:

. . . The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context.

I am of the view that the coming into force of IRPA, supra caused the live controversy between the parties to cease. The provisions of the Immigration Act, supra no longer govern any future application by the applicant and there can be no rehearing of the applicant's application should his application be granted. As well, I note that there are no interveners and no collateral consequence as noted by Borowoski, supra.

[40]            In relation to the second factor of judicial economy, I cannot find any special circumstances that justify the use of scarce judicial resources to deal with the application. The case is not, as far as the record discloses, a type of case that is of a recurring nature. How this judicial review application is decided will have no practical effect on the rights of the parties.

[41]            Under the third factor, the Supreme Court of Canada in Borowoski, supra at page 362 stated:

The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch.

I am of the view that any decision rendered by the Court in the application would not intrude into the role of the legislative branch. The Court would still be exercising its traditional role. This is the third factor to be considered by the Court in exercising its discretion whether or not to hear the application even if it is moot.

[42]            With respect to exercising its discretion to decide whether or not to hear a moot application, Sopinka J. made the following statement in Borowoski, supra at page 363:

In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two factors may be overborne by the absence of the third, and vice versa.

In the present case, factors 1 and 2 are in favour of the Court not exercising its discretion to hear a moot application. Factor 3 does not prevent the Court from hearing the application.

[43]            Having decided that the application for judicial review is moot, I will not exercise the Court's discretion to hear the application.

[44]            The parties shall have five days from the date of this decision to address the question of certification of a serious question of general importance and to submit any proposed serious

question of general importance for my consideration for certification. The parties shall have a further five days for any reply.

                                                                                    "John A. O'Keefe"            

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 27, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-1254-02

STYLE OF CAUSE: MYSAY BOUTTAVONG

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

PLACE OF HEARING:                                   Winnipeg, Manitoba

DATE OF HEARING:                                     Monday, October 21, 2002

REASONS FOR ORDER OF O'KEEFE J.

DATED:                      Thursday, March 27, 2003

APPEARANCES:

David Matas

FOR APPLICANT

Sharlene Telles-Langdon

FOR RESPONDENT

SOLICITORS OF RECORD:

David Matas

602 - 225 Vaughan Street

Winnipeg, Manitoba

R3C 1T7

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT