Date: 20010608
Docket: IMM-1139-99
OTTAWA, Ontario, this 8th day of June, 2001.
PRESENT: The Honourable Mr. Justice MacKay
BETWEEN:
IVAN ANTONIO BERMUDEZ,
ANA BERMUDEZ, IVAN BERMUDEZ, GRETHELL BERMUDEZ,
and BRYAN BERMUDEZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR SUPPLEMENTARY ORDER AND ORDER
MacKAY J.
[1] These Reasons and the Supplementary Order following are in supplement to the Reasons and Order filed in this matter on June 13, 2000. By that Order the applicants' application for judicial review was allowed, a decision of the Convention Refugee Determination Division denying the claim of the applicants to refugee status was set aside, and the matter referred for reconsideration.
[2] When that application for judicial review was heard, decision was reserved and I then indicated that I would provide reasons for my determination, and then an opportunity for counsel to propose, for consideration of the Court, one or more questions for certification under s-s. 83(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended (the "Act"), for consideration by the Court of Appeal.
[3] Later, when my Reasons were filed in June, 2000, I neglected to provide opportunity to propose questions for consideration pursuant to s-s. 83(1). The Reasons for Order and the Order allowing the application were both filed on June 13, 2000. Thereafter, counsel for the respondent Minister wrote to the Court proposing two questions for certification. These questions are:
1) Is a Refugee Division Panel required to inform a claimant of the particular branch of Article 1(F)(A) his or her activities are being considered under when giving notice of potential exclusion?
2) What is the scope of war crimes under Article 1(F)(A) - are they limited to the context of an international armed conflict or can they be committed in a domestic context?
[4] For the applicants, counsel responded on June 27, 2000, urging that the Court had determined on the facts of the case that the applicant had been denied fairness in the proceeding by the panel's decision and this, in counsel's view, was determinative of the matter, whether or not this Court was right in its assessment that war crimes as intended within Article 1(F)(A) were limited to crimes committed in the course of an international armed conflict. In the applicants' view the questions proposed were not determinative of an appeal on the first of the Court's findings.
[5] There followed correspondence from one counsel and response by the other which discussed the evolution of international criminal law and the jurisdiction of courts to deal with such matters. Interesting as that correspondence is, it is not persuasive in considering whether to consider certification of the questions proposed.
[6] After a delay, for which I can only express my regret, I have determined that the proposed questions will not be further considered and will not be certified.
[7] Two reasons lead me to this conclusion. First, I accept the submission on behalf of the applicants that my decision of June 13, 2000 was based upon two findings, the first being that in the circumstances the CRDD failed in its duty of fairness owed to the applicants when, although there was notice that Article 1(F)(A) was in issue, no notice was given that the panel would consider the commission of war crimes as distinct from crimes against humanity.
[8] In paragraphs 8 and 9 of the Reasons for Order dated June 13, 2000, I noted:
... The respondent in this case argues that since the possibility of exclusion under Article 1(F)(A) was known to the applicant, the applicant and his counsel had sufficient opportunity to address acts that might lead to exclusion. Further, counsel for the applicant made submissions about these acts, albeit directed to the concept of crimes against humanity, not war crimes. In its decision the CRDD specifically declined to consider whether Mr. Bermudez' activities constituted a crime against humanity. ...
... In my opinion, the two possible grounds for exclusion in this proceeding under clause 1(F)(A), crimes against humanity and war crimes, are sufficiently different to require different evidence and argument and different submissions would be expected in response. Though this is more closely related to the second issue, the facts as disclosed at the hearing do not prima facie disclose potential war crimes, but rather crimes against humanity. That crimes against humanity may have been in issue was reasonably foreseeable, but war crimes were not reasonably foreseeable from the circumstances.
I believe that aspect of the decision is fact based and that the proposed questions, if certified, may not effectively dispose of any appeal.
[9] The second reason is that in my opinion once the Order in this matter was filed on June 13, 2000 this Court was functus officio, even if it may be considered that an opportunity earlier held out to counsel was denied. For this I can only apologize. However, s-s. 83(1) provides:
83. (1) A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
[10] In Brar v. Canada (Minister of Citizenship & Immigration) (1997), 139 F.T.R. 79, 41 Imm. L.R. (2d) 194 (T.D.), Mr. Justice Heald declined to certify a question proposed pursuant to s-s. 83(1). The circumstances in that case were different in that counsel did not raise the matter of certifying the proposed question when the application for judicial review was heard. Heald J. determined that after considering the issues and rendering formal judgment he was functus officio and did not have jurisdiction to reopen the matter. I respectfully agree.
Conclusion
[11] For these reasons, I decline to certify questions proposed for consideration pursuant to s-s. 83(1) of the Act, and the following Order issues.
O R D E R
IT IS ORDERED that the questions proposed by the respondent for consideration pursuant to s-s. 83(1) of the Immigration Act, in relation to the Order issued on June 13, 2000, are not certified for consideration by the Court of Appeal.
(signed) W. Andrew MacKay
JUDGE
OTTAWA, Ontario
June 8, 2001.
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