Date: 20100302
Docket: IMM-6267-09
Citation: 2010 FC 243
Ottawa, Ontario, March 2, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
XXXX
Respondent
SUPPLEMENTARY REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Subsequent
to the issuance of my Reasons for Judgment and Judgment dated February 2, 2010,
the Respondent has proposed two certified questions involving the
interpretation of ss. 58(1)(c) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. The questions proposed are the following:
(a) In an application
pursuant to ss. 58(l)(c) of the Immigration and Refugee Protection Act,
what degree of deference, if any, is the presiding Member of the Immigration Division
required to give to the Minister’s suspicion that the person concerned is
inadmissible on grounds of security or for violating human or international
rights?
(b) In an application
pursuant to ss. 58(1)(c) of the Immigration and Refugee Protection Act,
what degree of deference, if any, is the presiding Member of the Immigration
Division required to give to the Minister’s decision on what further
investigative steps are needed (or necessary) in their inquiry into a suspicion
that the person concerned is inadmissible on grounds of security or for
violating human or international rights?
[2]
The
Applicant opposes the request for certification on the basis of mootness and
points out that, since the Court’s decision, the Respondent has been released
from custody on conditions, albeit that the conditions agreed to by the parties
are different than those imposed by the Board.
[3]
There is
no question that the issue of statutory interpretation raised on this judicial
review meets the threshold for certification and would be worthy of
consideration by the Court of Appeal. The views of the Court of Appeal
concerning the scope of ss. 58 (1)(c) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 would be of value when a case similar to
this comes up in the future. Although the Applicant may well be correct that
this judicial review is now moot in the face of the Respondent’s release from
custody, I am still disposed to certify the questions proposed. That is so
because mootness is not necessarily a bar to hearing a case on appeal. It
seems to me to be more prudent to allow the Court of Appeal to decide the
question of mootness than to block an otherwise meritorious appeal on that
basis before the issue has been fully argued.
[4]
The
Applicant has, in the alternative, proposed his own questions for
certification. I do not think that there is much to choose from between the
two proposals and I will, therefore, certify the questions proposed by the
Respondent.
JUDGMENT
THIS COURT ADJUDGES
that
this application for judicial review is allowed.
THIS COURT FURTHER
ADJUDGES that the following questions are certified:
(a) In an application
pursuant to ss. 58(l)(c) of the Immigration and Refugee Protection Act,
what degree of deference, if any, is the presiding Member of the Immigration
Division required to give to the Minister’s suspicion that the person concerned
is inadmissible on grounds of security or for violating human or international
rights?
(b) In an application
pursuant to ss. 58(1)(c) of the Immigration and Refugee Protection Act,
what degree of deference, if any, is the presiding Member of the Immigration
Division required to give to the Minister’s decision on what further
investigative steps are needed (or necessary) in their inquiry into a suspicion
that the person concerned is inadmissible on grounds of security or for
violating human or international rights?
“ R. L. Barnes ”
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