Canada (Minister of Citizenship and Immigration) v. Varela, docket IMM-2807-00

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docket IMM-2807-00

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Date: 20000705

Docket: IMM-2807-00

BETWEEN:

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Applicant

- and -

JAMIE CARRASCO VARELA

Respondent

REASONS FOR ORDER

LEMIEUX J.

A. INTRODUCTION

[1] These reasons relate to injunctions sought by the Minister of Citizenship and Immigration ("the Minister"): (1) preventing, until the underlying leave and judicial review application filed by the Minister on June 1, 2000 is finally determined, the continuation of an Adjudicator"s inquiry on the inadmissibility under section 19(1)(j) of the Immigration Act ("the Act") into what Jamie Carrasco Varela ("the respondent") did or did not do in Nicaragua before he came to Canada and (2) preventing the Adjudicator from presiding over the inquiry until then.

[2] In addition, the Minister sought an order under section 82.1(4) of the Act that the leave application be heard orally. The respondent has consented to such an order and has consented to leave being granted if I should conclude in the context of the injunction application a serious issue equating to an arguable case has been made out.

B. BACKGROUND

[3] The respondent is a citizen of Nicaragua. He served in the military from August 1983 to October 1989. Two years after joining the army, he became a member of the Sandanista Front of National Liberation (FSLN).

[4] He, his wife and son came to Canada in August of 1991 and made refugee claims on grounds of their political opinions and membership in a particular social group.

[5] On March 20, 1992, the Refugee Division determined the respondent was not a person covered by the Convention because of Article 1F(a) which states it shall "not apply to any person with respect to whom there are serious reasons for considering that he has committed ... a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes."

[6] The Federal Court of Appeal on June 4^th, 1992, denied the respondent leave to appeal from the Refugee Division"s decision.

[7] The record indicates the 24^th of June 1993, the then Minister authorized the issuance of a permit to the respondent and his family to proceed to landing after they had complied with all statutory requirements of the Immigration Act and Regulations.

[8] On October 20, 1999, a report was made to the Deputy Minister responsible under the Act by an immigration officer under paragraph 27(2)(a) and subsection 27(2.01) of the Act stating the respondent was a person in Canada, other than a Canadian citizen or permanent resident, who if he were applying for entry would not or might not be granted entry by reason of being a member of the inadmissible class described in paragraph 19(1)(j) of the Act.

[9] Paragraph 19(1)(j) of the Act reads:

19. (1) No person shall be granted admission who is a member of any of the following classes:

19. (1) Les personnes suivantes appartiennent à une catégorie non admissible :

...

(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission;

j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis, à l'étranger, un fait constituant un crime de guerre ou un crime contre l'humanité au sens du paragraphe 7(3.76) du Code criminel et qui aurait constitué, au Canada, une infraction au droit canadien en son état à l'époque de la perpétration;

[10] Subsection 7(3.76) of the Criminal Code ("the Code") reads:

(3.76) For the purposes of this section,

"conventional international law" "droit international conventionnel"

"conventional international law" means

(a) any convention, treaty or other international agreement that is in force and to which Canada is a party, or

(b) any convention, treaty or other international agreement that is in force and the provisions of which Canada has agreed to accept and apply in an armed conflict in which it is involved;

"crime against humanity" "crime contre l'humanité"

"crime against humanity" means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;

"war crime" "crime de guerre"

"war crime" means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts.

(3.76) Les définitions qui suivent s'appliquent au présent article.

"crime contre l'humanité" "crime against humanity"

"crime contre l'humanité" Assassinat, extermination, réduction en esclavage, déportation, persécution ou autre fait - acte ou omission - inhumain d'une part, commis contre une population civile ou un groupe identifiable de personnes - qu'il ait ou non constitué une transgression du droit en vigueur à l'époque et au lieu de la perpétration - et d'autre part, soit constituant, à l'époque et dans ce lieu, une transgression du droit international coutumier ou conventionnel, soit ayant un caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations.

"crime de guerre" "war crime"

"crime de guerre" Fait - acte ou omission - commis au cours d'un conflit armé international - qu'il ait ou non constitué une transgression du droit en vigueur à l'époque et au lieu de la perpétration - et constituant, à l'époque et dans ce lieu, une transgression du droit international coutumier ou conventionnel applicable à de tels conflits.

"droit international conventionnel" "conventional international law"

"droit international conventionnel" Conventions, traités et autres ententes internationales en vigueur auxquels le Canada est partie, ou qu'il a accepté d'appliquer dans un conflit armé auquel il participe.

[11] Pursuant to paragraph 27(3)(b) and subsection 27(6) of the Act, a senior immigration officer caused an inquiry by the Adjudicator on the respondent"s inadmissibility.

[12] At an early stage of the inquiry, the Minister"s counsel made a motion to the Adjudicator for a ruling that a recent decision of Mr. Justice Pinard in Rony Danilo Figueroa v. The Minister of Citizenship and Immigration (Court File No. IMM-1264-99 dated February 25, 2000) was determinative of the first branch of the two part test under paragraph 19(1)(j). The Minister"s counsel argued the Refugee Division in its 1992 decision had resolved the issue of there being reasonable grounds to believe the respondent had committed an act or omission outside of Canada that constituted a war crime or crime against humanity within the meaning of subsection 7(3.76) of the Code and as a result, the Adjudicator was precluded from hearing any further evidence on the point. Counsel for the Minister conceded to the Adjudicator the Minister was required to lead evidence to establish the second branch of paragraph 19(1)(j) of the Act namely, if such act had been committed in Canada, such act would have constituted an offence against the laws of Canada in force at the time of the act or omission.

[13] In Figueroa, supra, Mr. Justice Pinard was reviewing a decision of an immigration officer who, under subsection 46.04(3) of the Act, had denied landing to the applicants because one of them was a person described in paragraph 19(1)(j) of the Act. Mr. Figueroa had been excluded as a Convention refugee by a 1996 Refugee Division decision on the grounds of serious reasons for considering he had committed a crime against humanity, a decision in which he did not seek leave to review by this Court.

[14] Mr. Justice Pinard interpreted paragraph 19(1)(j) as containing a two-pronged test as described above. As to the first prong, my colleague said this at paragraph 15:

[15] In my opinion, a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under paragraph 19(1)(j) of the Act has been fulfilled.

[15] I was informed by counsel for the Minister the thrust of his argument before the Adjudicator on the ruling which is contested by the Minister in the underlying application for leave and judicial review was (1) Figueroa was binding on the Adjudicator; (2) the issue of whether there were reasonable grounds for believing the respondent had committed a crime against humanity was res judicata in view of the Federal Court of Appeal"s denial of leave to the respondent in 1992; and (3) a comity or respect for the Refugee Division"s 1992 determination was required.

C. THE ADJUDICATOR"S RULING

[16]

On May 24, 2000, the Adjudicator denied, with written reasons, the Minister"s motion.

[17] The Adjudicator did not accept the impact of the Figueroa decision on the inquiry he was conducting into the respondent. First, he stated Figueroa conflicted with Mr. Justice Noël"s decision in Canada (M.C.I.) v. Salinas-Mendoza (1994), 29 Imm.L.R. (2d) 295. The Adjudicator derived from Salinas-Mendoza, supra, the principles of the independence of the Adjudicator, the necessity to base all decisions by an Adjudicator strictly on the evidence adduced before the Adjudicator and not to abdicate this responsibility in any manner.

[18] Second, he distinguished Figueroa, supra, on the basis the decision maker there was an immigration officer whose mandate is fact-finding and whose decision related to granting or refusing landing unlike an adjudicator"s inquiry where questions of fact and law are involved and the result could be a deportation order.

[19] After focussing on the importance of evidence at an inquiry which he said often turns on questions of credibility, the Adjudicator added this:

If the person concerned is denied an opportunity at this inquiry of responding to paragraph 19(1)(j) of the Immigration Act, I, as the decision maker, am placed in the same position as the immigration officer under subparagraph 46.04(3). An independent assessment of evidence will be unavailable to me. I will likely be obligated to issue a deportation order to the subject based on a decision of the Refugee Division, which I may or may not be in agreement with. Proceeding in this fashion could jeopardize Mr. Varela"s section 7 Charter right, specifically, the right to life, liberty and security of the person, and the right not to be deprived thereof except by an application of the principles of fundamental justice.

[20] The Adjudicator concluded by saying this:

In conclusion, I am compelled to reject the arguments of counsel for the Minister of Citizenship and Immigration. In my view, to rule otherwise, would bring the administration of justice for this inquiry into disrepute. I also query why the Immigration department would compromise its position at the inquiry of Jaime Carrasco Varela by the submissions made in accordance with the Figueroa decision. Notwithstanding this concern however, evidence may be presented in any manner deemed appropriate. If it is believed that the decision of the Refugee Division suffices for the same ruling to be made concerning the first segment of paragraph 19(1)(j) of the Act, counsel for the Minister may choose to rely strictly on documentary evidence before this inquiry which has been provided in disclosure. I, on the other hand, will permit the presentation of all evidence relevant to paragraph 19(1)(j), as I am required to do under the authority of the Act.

D. ANALYSIS

[21] The Minister"s arguments in support of the injunction sought were twofold: first, the Adjudicator was wrong in holding Figueroa, supra, was not binding on him with the result he would be embarking upon a fundamental evidentiary aspect of the inquiry which was unnecessary and, second, his ruling disclosed a predisposed view, amounting to a reasonable apprehension of bias, in favour of the respondent.

[22] The respondent"s reply argument focussed on the well-known principle that judicial review of an interlocutory evidentiary ruling by a statutorily constituted tribunal should not be entertained. He also argued no irreparable harm had been made out because the inquiry could and should proceed and in the circumstances the balance of convenience was in the respondent"s favour.

(a) Prematurity and serious issue

[23] There is no doubt, as a general proposition, that the respondent"s position on prematurity is in accordance with the established principle that courts will not, except in special circumstances, entertain judicial review of interlocutory evidentiary rulings made in the middle of a duly mandated inquiry.

[24] This proposition was recently reiterated and emphasized by Sexton J.A. in Zündel v. Citron, [2000] F.C.J. 679, May 18, 2000.

[25] Mr. Justice Sexton reviewed the authorities and concluded, on behalf of the Federal Court of Appeal, that evidentiary rulings in the midst of a tribunal"s inquiry were inappropriate unless special circumstances existed which warranted the court"s immediate intervention. He identified jurisdiction as one such circumstance.

[26] Counsel for the Minister recognized his burden and argued special circumstances warranting this Court"s immediate intervention, namely, the binding effect on the Adjudicator of this Court"s ruling in Figueroa, supra, on a statutory authority which was obliged to follow decisions of a superior court (no different, I might add than the Trial Division is bound to apply rulings of the Federal Court of Appeal or, need it be said, of the Supreme Court of Canada).

[27] The arguments by the Minister make sense. It is obvious, from the Adjudicator"s ruling on the Minister"s motion, he was not happy with this Court"s decision in Figueroa, supra, and sought to distinguish it. He invoked the principle of independence and his duty to hear evidence before making a ruling.

[28] On the face of it, the Adjudicator"s ruling raises a serious issue. Was the Adjudicator right in the distinctions he brought to the applicability of Figueroa, supra, requiring, as a result, the need or burden by the Minister to establish the first prong of paragraph 19(1)(j) on the basis of freshly proven facts.

[29] I am satisfied the nature of the Adjudicator"s ruling constitutes a special circumstance requiring this Court"s immediate intervention. This ruling by the Adjudicator cannot simply be characterized as one of many evidentiary rulings made during the course of a tribunal"s inquiry. By way of contrast, this ruling dealt with a fundamental and basic aspect of his inquiry: what evidence can or must be heard, if any, in respect of the first prong of paragraph 19(1)(j ) of the Act. In determining the evidentiary structure or framework of an important element of this inquiry, the Adjudicator"s decision disposed of a substantial question before him (see, Minister of National Revenue v. Schnurer Estate (1997), 208 N.R. 339 (F.C.A.)).

[30] Viewed in this light, the Adjudicator"s ruling was jurisdictional in nature determining, as it did, the essence and scope of his inquiry.

[31] Given this finding, it is unnecessary for me to rule on the second ground advanced by the Minister related to a reasonable apprehension of bias arising out of the Adjudicator"s conduct and ruling.

(b) Irreparable harm

[32] Justices Sopinka and Cory for the Court in RJR"MacDonald Inc. v. The Attorney General for Canada et al. [1994] 1 S.C.R. 311, reviewed the applicable principles for the grant or refusal of an interlocutory injunction or stay in a case where the constitutionality of the Tobacco Products Control Act, and regulations made thereunder, was at issue.

[33] In terms of irreparable harm, the tobacco companies advanced the argument they would be obligated to incur unrecoverable expenses in redesigning their packaging before the Court would have ruled.

[34] The Supreme Court established the following principles related to irreparable harm:

(a) at this stage, the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants" own interest that the harm could not be remedied if the eventual decision on the merits does not accord with the results of the interlocutory application (p. 341).

(b) "irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which cannot be qualified in monetary terms or which cannot be cured (p. 341).

(c) the harm which a respondent may suffer should be analysed at the balance of convenience stage and any harm to the public interest should be considered there (p. 341).

[35] At page 350 of the decision, the Supreme Court of Canada found, in the circumstances, the packaging expenses which the new regulations will impose irreparable harm on the applicants because of the difficulty in establishing constitutional liability and monetary redress.

[36] The harm identified by the Minister here is the probable future harm if the injunction is not granted. Counsel argues the Minister will be forced to revisit the exclusion findings of the Refugee Division. In other words, the Minister will be obliged to proceed on the basis of a de novo rehearing on the exclusion issue.

[37] Counsel for the Minister also indicated the case before me was not unique because there were three similar cases where the applicability of Figueroa, supra, would soon be before an Adjudicator.

[38] I am satisfied counsel for the Minister has demonstrated irreparable harm, that is harm which cannot be remedied if the injunction is refused and the judicial review is successful. As noted, the Adjudicator"s ruling is critical to the way he intends to proceed with his inquiry and has told the parties what he views as the necessary evidence. He does not accept this Court"s decision in Figueroa, supra, as binding.

[39] If the Adjudicator is wrong, the inquiry will have been for naught because it would have proceeded on a fundamentally wrong principle " the need to freshly prove the exclusion.

[40] Rothstein J.A. in Evangelical Fellowship of Canada v. Canadian Musical Reproduction Rights Agency, [2000] 1 F.C. 586, held the applicant there had made out irreparable harm in incurring potential wasted and irrecoverable costs in proceedings before the Copyright Board. That element is present here but in itself may not be sufficient to counter the public interest depending on the circusmtance.

(c) Balance of convenience

[41] The question here is which of the two parties will suffer greater harm from the granting or refusal of the interlocutory injunction.

[42] Quite apart from the issue of the public interest, clearly the Minister would suffer greater harm if the injunction is refused because his harm is irreparable. Paradoxically, the respondent benefits from an injunction restraining the Adjudicator. He is not at risk from deportation but his inquiry is delayed. If the Adjudicator is wrong, he will have saved non recoverable expenses.

[43] Taking the public interest into account, I am of the view it favours the Minister in this instance. It is, of course, in the public interest that a duly constituted inquiry should not be restrained except in the clearest cases.

[44] I am satisfied this is one such case. First, the Adjudicator"s ruling in not following Figueroa, supra , which appears to be on point, affects the judicial system and its proper functioning in terms of binding rulings. Second, the Adjudicator"s ruling goes at the heart of the case which the Minister must establish. The public interest in this circumstance does not benefit in what could be a void proceeding. Third, the matter of the proper application of the Convention and its interrelationships with domestic law are matters vital to Canada"s international reputation. (See, Canada (M.C.I.) v. Tobiass , [1997] 3 S.C.R. 391 at p. 435.)

[45] For all of these reasons, the Adjudicator is enjoined from continuing his inquiry until the underlying leave and judicial review application is finally determined.

(d) The leave application

[46] The respondent consented to leave being granted should I come to the conclusion a serious question arose in this injunction application. I have so

concluded and leave will be granted once the parties submit a proposed schedule as counsel indicated they would.

"François Lemieux"

J U D G E

OTTAWA, ONTARIO

JULY 5, 2000

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Canada (Minister of Citizenship and Immigration) v. Varela, docket IMM-2807-00

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