Docket: IMM-9680-11
Citation: 2012 FC 32
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, January 11, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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LEON MUGESERA
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Preliminary
[1]
In
Léon Mugesera’s case, the voice of the Supreme Court of Canada was already
heard in 2005 in a unanimous judgment. This judgment recognizes that hundreds
of thousands of Rwandans were reduced to silence by a genocide incited against
an identifiable group characterized by its ethnic origin, the Tutsi.
178 In the face of certain
unspeakable tragedies, the community of nations must provide a unified
response. Crimes against humanity fall within this category. The
interpretation and application of Canadian provisions regarding crimes against
humanity must therefore accord with international law. Our nation’s
deeply held commitment to individual human dignity, freedom and fundamental
rights requires nothing less.
82 Genocide is a crime originating
in international law. International law is thus called upon to play a crucial
role as an aid in interpreting domestic law, particularly as regards the
elements of the crime of incitement to genocide. Section 318(1)of the Criminal
Code incorporates, almost word for word, the definition of genocide found
in art. II of the Genocide Convention, and the Minister’s allegation B
makes specific reference to Rwanda’s accession to the Genocide Convention.
Canada is also bound by the Genocide Convention. In addition
to treaty obligations, the legal principles underlying the Genocide
Convention are recognized as part of customary international law: see
International Court of Justice, Advisory Opinion of May 28, 1951, Reservations
to the Convention on the Prevention and Punishment of the Crime of Genocide,
I.C.J. Reports 1951, at p. 15. The importance of interpreting domestic
law in a manner that accords with the principles of customary international law
and with Canada’s treaty obligations was emphasized in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras.
69-71. In this context, international sources like the recent
jurisprudence of international criminal courts are highly relevant to the
analysis.
(Mugesera v Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] 2 SCR 100).
[2]
The
Court refers to paragraphs 88, 89, 105, 106, 114 and 115 of this Supreme Court
of Canada judgment (Mugesera, above).
[3]
In
Léon Mugesera’s case, the unanimous voice of the Supreme Court of Canada,
in its 2005 decision, sounds a refrain that now reverberates through the recent
decisions of the European Court of Human Rights and the Appeals Chamber of the
International Criminal Tribunal for Rwanda.
II. Introduction
[4]
Léon Mugesera
has been living in Canada for almost 20 years. On December 6, 2011, he
received an 80‑page decision in which the federal government determined
that Léon Mugesera will not face significant risks should he return to Rwanda.
[5]
The
applicant is requesting a stay of the removal order pending a review of his
applications for leave and applications for judicial review of the decisions
that are currently being challenged on judicial review.
[6]
The
applicant is challenging the decision by the Minister’s delegate, under
subsection 15(2) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], and the decision to remove him on January 12, 2012.
III. Summary of the merits of the case
[7]
On
June 28, 2005, the Supreme Court of Canada affirmed the decision of the
Immigration Appeal Division [IAD] determining that the Minister of Citizenship
and Immigration Canada [CIC] had discharged his burden of proving that the
applicant was inadmissible to Canada for inciting to murder, hatred and
genocide and for committing a crime against humanity under paragraphs 27(1)(a.1)(ii)
and 27(1)(a.3(ii)) of 27(1)(g), 19(1)(j) of the former Immigration
Act.
[8]
On
December 19, 2005, the Canada Border Services Agency [CBSA] informed the
applicant that it intended to seek the opinion of the Minister of CIC under
paragraph 115(2)(b) of the IRPA as to whether Léon Mugesera
should be allowed to remain in Canada on the basis of the nature and severity
of the acts he committed. The applicant provided submissions and additional
documents regarding this notice during the years that followed. He also
requested and obtained more time to make submissions. The applicant had ample
opportunity to make his case.
[9]
Subsection 48(2)
of the IRPA provides that a removal order must be enforced as soon as is
reasonably practicable. Those circumstances are currently in place and have
been since November 24, 2011, the date on which the Minister’s delegate
decided, under paragraph 115(2)(b) of the IRPA, that the applicant should
not be allowed to remain in Canada on the basis of the nature and severity of
the acts he committed.
[10]
This
Court told both parties that their two respective positions were distinct and
clearly very far removed from each other. By inherent logic, following its in‑depth
assessment, this Court has no choice but to agree with the respondent’s
position. Changing or mitigating the respondent’s statements would go against
the spirit of the Supreme Court of Canada judgment considering that the
respondent always keeps in mind the Supreme Court of Canada judgment in Mugesera.
In addition, the Court makes this finding based on its research and analyses of
both parties’ arguments. According to Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 and Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, an inherent logic flows from the reasonable
decision of the Minister’s delegate. To do otherwise than to accept the
respondent’s position on the decision by the Minister’s delegate would be to
remove words like adding words and would be illogical to a work that
demonstrates validity with regard to the decision by the Minister’s delegate,
which has been worked on since the 2005 Supreme Court of Canada judgment. This
is a result of the Supreme Court decision (in the case of the applicant)
pursuant to which the Canadian authorities worked to ensure that the Rwandan
government’s assurances with respect to the applicant’s safety and well‑being
would be valid and also to ensure that he would receive a fair trial. The CBSA
established that it waited until it received solid assurances from Rwanda
before refouling the applicant. Every statement in the decision of the
Minister’s delegate demonstrates care derived from an analysis of Canadian
immigration law and an understanding of the facts regarding the applicant. The
decision of the Minister’s delegate is well reasoned and reasonable. The
applicant did not demonstrate that there is a serious issue. The applicant did
not establish that he would suffer irreparable harm if he were removed before
his applications for leave and judicial review were disposed of. Finally, the
balance of convenience favours the Minister.
IV. Facts
Immigration file
[11]
On
November 22, 1992, while he was vice‑president of the Mouvement
républicain national pour le développement et la démocratie [MRND] in the prefecture
of Gisenyi, the applicant gave a speech calling for the extermination, in
particular, of members of the Tutsi ethnic group. A few months prior to the
applicant’s speech, Tutsi had been massacred in Gisenyi (Decision of the
Minister’s delegate at pages 3, 17 and 18).
[12]
On
August 12, 1993, the applicant arrived in Canada as a refugee after
obtaining that status at the Canadian Embassy in Madrid. He obtained his
permanent residence the same day (Decision of the Minister’s delegate at page
3).
[13]
On
June 28, 2005, the Supreme Court of Canada in the Mugesera decision,
above, found that the applicant was inadmissible under sections 19 and 27 of
the former Immigration Act because by giving his speech on
November 22, 1992, he had committed the following crimes:
·
He
incited to murder: the applicant “not only intentionally gave the speech, but
also intended that it result in the commission of murders” (paragraphs 79 and
80 of the Supreme Court decision);
·
He
incited to genocide: although he was aware that Hutu had massacred Tutsi, he
attempted to incite MRND supporters to attack opposition party members (paragraphs
97 and 98 of the Supreme Court decision);
·
He
incited to hatred: “Mr. Mugesera’s speech targeted Tutsi and encouraged hatred
of and violence against that group” (paragraphs 107, 110 and 111 of the Supreme
Court decision);
·
He
committed a crime against humanity: although he was aware of the attacks
against opposition members, specifically the Tutsi, he gave a speech inciting
to their extermination, a speech that was “part of a systemic attack directed
against a civilian population that was occurring in Rwanda” (paragraphs 169,
179 and 177 of the Supreme Court decision).
[14]
On
November 24, 2011, the Minister’s delegate concluded:
[translation]
After carefully reviewing all the facts
of the case, including humanitarian and compassionate considerations, and
assessing the potential risks that Mr. Mugesera could face should he be
returned to Rwanda as well as the nature and severity of his acts, I find that
Mr. Mugesera may be removed from Canada despite subsection 115(1) of
the IRPA because his return to Rwanda would not violate his rights under
section 7 of the Canadian Charter of Rights and Freedoms.
(Decision of
the Minister’s delegate at page 79).
[15]
On
December 7, 2011, two CBSA enforcement officers met with the applicant in
the presence of his counsel, Guy Bertrand, gave him the decision of the
Minister’s delegate and told him that his removal would take place in early
January 2012.
[16]
On
December 22, 2011, the applicant filed an application for leave against
the decision made by the Minister’s delegate.
[17]
On
December 29, 2011, the applicant was advised that his removal would take
place on January 6, 2012. Following an application by the applicant’s new
counsel, the CBSA agreed to defer his removal until January 12, 2012 (Applicant’s
Record [AR] at pages A‑81 to A‑84).
[18]
On
December 30, 2011, counsel for the applicant asked the CBSA to defer his
removal sine die (AR at page A‑84).
[19]
On
January 4 , 2012, the applicant filed a motion with the Federal Court
asking for a stay of his removal. He challenged the decision made by the
Minister’s delegate.
[20]
On
January 5, 2012, the CBSA refused to defer the applicant’s removal.
Accordingly, the removal was scheduled for January 12, 2012 (Exhibit B to
the Affidavit of Pierre Alain Moreau).
V. Decision of Minister’s delegate
[21]
After
a comprehensive and detailed analysis of the evidence in the record, the
Minister’s delegate determined first that the applicant’s speech calling for
murder and genocide constituted an unacceptable act for Canadian society justifying
his removal from Canada (Decision of Minister’s delegate at pages 38 and 39).
[22]
The
applicant did not demonstrate that he could not receive a full and fair trial
should he return to Rwanda:
·
Since
the end of the 1994 genocide, and particularly in recent years, the Rwandan
government has made significant progress in ensuring that people charged with
participating in genocide are tried impartially and within a reasonable time (Decision
of the Minister’s delegate at pages 44, 45, 48, 56 and 57);
·
The
Rwandan government made a commitment to consider and treat the applicant as a
person transferred from a country or a foreign court (Decision of the
Minister’s delegate and assurances from the Rwandan government at page 53,
Exhibit A to the Affidavit of Aleksandra Wojciechowski). The applicant will
stand trial in the High Court (Rwanda) not in the gacacas: since the crimes he
is charged with involve persons suspected of planning, organizing, coaching and
inciting to genocide are tried, according to Rwandan law, by this court. Furthermore,
the Rwandan government made a commitment that the applicant would not be tried in
a gacaca (Decision of the Minister’s delegate at page 53);
·
The
judges who sit on the High Court (Rwanda) are experienced professionals who are
bound by a code of ethics and who must issue written judgments with reasons (Decision
of the Minister’s Delegate at page 53);
·
The
applicant will have the opportunity to call witnesses: the Rwandan government has
taken steps to ensure that witnesses are protected (Decision of the Minister’s Delegate
at pages 60 and 61);
·
The
applicant will be able to have an independent free lawyer (Decision of the
Minister’s delegate at pages 60 and 61).
[23]
The
applicant has also not demonstrated that, should he return to Rwanda, he would
be tortured and/or mistreated while in detention:
·
Rwandan
authorities are concerned about and actively prosecute individuals who threaten
people suspected of participating in genocide (Decision of the Minister’s
delegate at page 64);
·
The
applicant cannot be sentenced to a harsher sentence than life imprisonment: the
death penalty was abolished in 2007, and the Rwandan government made a commitment
to not sentence the applicant to life imprisonment (Decision of the Minister’s
delegate at pages 62 and 63);
·
The
Rwandan government has committed itself to detaining the applicant in a prison
that complies with international standards. Moreover, recent documentation shows
that the Red Cross is monitoring 74,000 detainees to ensure good detention conditions
(Decision of the Minister’s delegate at pages 66 to 70);
·
The
Rwandan government also made a commitment to the Canadian government to respect
the applicant’s rights and provided diplomatic assurances regarding the
treatment he will receive. Good faith on the part of the Rwandan government
must be presumed, and there is no evidence that it did not comply with its commitments
in the past (Decision of the Minister’s delegate at pages 71 to 73).
[24]
Moreover,
the applicant has a high profile and is the subject of intense media scrutiny.
It is reasonable to find that the Rwandan authorities will pay particular
attention to respecting his rights and will ensure that he receives a full and
fair trial (Decision of the Minister’s delegate at page 70).
[25]
The
applicant has not demonstrated that the Rwandan government will not comply with
the assurances it has given to the Canadian government (Decision of the
Minister’s delegate at page 73).
[26]
In
conclusion, the Minister’s delegate determined that there were no humanitarian
or compassionate considerations that could lead him to find that the
applicant’s removal to Rwanda would cause unusual or undeserved hardship. He
found notably that Léon Mugesera has never felt remorse about the speeches
he gave and still continues to deny statements about genocide (Decision of the
Minister’s delegate at pages 77 and 78).
VI. Analysis
[27]
To
assess the merits of the stay motion, this Court must determine whether the
applicant satisfies the jurisprudential criteria laid down by the Federal Court
of Appeal in Toth v Canada (Minister of Employment and Immigration) (1988),
86 NR 302 (FCA).
[28]
In
that case, the Federal Court of Appeal adopted three criteria that it imported
from the case law on injunctions, specifically the Supreme Court of Canada decision
in Manitoba (Attorney General) v Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110. These three criteria are:
(1) the
existence of a serious issue;
(2) the
existence of irreparable harm; and
(3) the
assessment of the balance of convenience.
[29]
The
three criteria must be met for this Court to grant the requested stay. If one
of them is not met, this Court cannot grant the stay.
[30]
In
this case, the applicant did not demonstrate the existence of a serious issue
to be tried on his application for leave against the decision of the Minister’s
delegate or the existence of irreparable harm and, finally, the applicant’s inconvenience
does not outweigh the public interest in wanting the removal to be enforced as
soon as is reasonably practicable under subsection 48(2) of the IRPA.
A. Serious issue
[31]
The
applicant has not demonstrated the existence of a serious issue to be tried by
this Court for the following reasons:
(i) It
is not necessary that the applicant be convicted to justify the exception to
the principle of non‑refoulement.
[32]
The
applicant argues that subsection 115(2) of the IRPA should be interpreted
as requiring a conviction in accordance with paragraph 33(2) of the Convention (Applicant’s
memorandum at paragraphs 1 to 13). The applicant also contends that the fact
that he has not been convicted by a final judgment and the fact that the
Supreme Court did not find beyond a reasonable doubt that the crimes were
committed cannot in law justify a decision to return the applicant under
subsection 115(2) of the IRPA.
Standard of
review
[33]
It
is important to keep in mind that inadmissibility proceedings fall within civil
law, not criminal law, and to understand that Parliament’s intent is
not to lead the decision‑maker to determine an individual’s guilt but
rather the individual’s admissibility under the legal test that the decision‑maker
is required to apply.
[34]
Requiring
a conviction by a final judgment amounts to applying a higher standard of proof
than necessary when the standard of proof in the case of subsection 115(2)
of the IRPA is reasonable grounds to believe. The principle that reference
to criminal law in immigration matters has to be made with circumspection:
[67] Before concluding on that
issue, I make two further comments. First, while it is understood that the
provisions of the Criminal Code will play an important role in a
determination of complicity in the context cited above, (especially when we
consider subsection 34(2) of the Interpretation Act, RSC, 1985, c I‑21),
it is not excluded that other Acts of Parliament may apply to a particular
situation on a finding of complicity (see subsection 4(4) of the Cr.C). Second,
reference to criminal law in the context of immigration matters has to be made
with circumspection and with the required adaptations, especially since the
proper standard of proof applicable to subsection 115(2) of the Act is
reasonable grounds and not beyond reasonable doubt. [Emphasis added].
(Nagalingam v Canada (Minister of
Citizenship and Immigration), 2008 FCA 153, [2009] 2 FCR 52).
Statutory
provision prevails over international rule
[35]
In
response to the applicant’s arguments concerning paragraph 33(2) of the
Convention, the Court agrees that the respondent’s reminder in de Guzman v
Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 FCR
655, the Federal Court of Appeal rejected the argument that international human
rights instruments take priority over the provisions of the IRPA. The Court
found that if there is a conflict between the two rules, the statutory
provision must prevail over an international rule.
Statutory
context
[36]
Moreover,
at paragraph 91 of de Guzman, above, the Federal Court of Appeal stated
that whether a statutory provision complies with Canada’s international
obligations must be considered in the context of the entire legislative scheme.
[37]
With
respect to the statutory context, maintaining the security of Canadians and denying
access to persons who are criminals or security risks are important objectives
of the IRPA:
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3. (2) The objectives of
this Act with respect to refugees are
…
(g) to protect the health and
safety of Canadians and to maintain the security of Canadian society; and
(h) to promote international
justice and security by denying access to Canadian territory to persons,
including refugee claimants, who are security risks or serious criminals
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3. (2) S’agissant des
réfugiés, la présente loi a pour objet:
[...]
g) de protéger la santé des Canadiens et
de garantir leur sécurité;
h) de promouvoir, à l’échelle internationale,
la sécurité et la justice par l’interdiction du territoire aux personnes et
demandeurs d’asile qui sont de grands criminels ou constituent un danger pour
la sécurité.
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[38]
The
principle of non-refoulement in subsection 115(1) of the IRPA generally
prohibits returning a person who has been granted refugee status.
[39]
However,
to ensure that the above‑noted objectives are met, the IRPA provides an
exception to the principle of non‑refoulement in paragraph 115(2)(b)
of the IRPA; it permits the Minister to disregard this restriction and to
deport a person to a country where he or she risks persecution or torture if
the person is inadmissible on grounds of security,
violating human or international rights or organized criminality on the basis
of the nature and severity of acts committed or of danger to the security of
Canada.
[40]
The
applicant committed serious crimes and because of that is inadmissible under
paragraphs 27(1)(a.1)(ii) and 27(1)(a.3(ii)) of 27(1)(g),
19(1)(j) of the former Immigration Act. These paragraphs refer to
the commission, outside Canada, of acts constituting certain crimes or
offences. These provisions do not require that a person be convicted of a
crime.
[41]
Moreover,
in this regard, the Minister’s delegate stated as follows on pages 38 and 39 of
his decision:
[translation]
I find that Mr. Mugesera’s act, a
violent speech inciting to murder, in light of the circumstances surrounding
his speech, i.e. the climate of ethnic tension that existed in Rwanda and his
own knowledge of ethnic and political issues, is an unacceptable act for any
society. The objectives stated in the IRPA and the objectives aimed at suppressing
serious crimes that constitute human rights violations, reflected in
international instruments and the decisions of international courts as well as
in our own Canadian criminal law, condemn this behaviour. I am satisfied as to
the extreme seriousness of this type of behaviour, which is a force whose
devastating and destructive potential has been clearly demonstrated. I am satisfied
that there are reasonable grounds to believe that the nature and severity of
the acts committed justify that he not be allowed to remain in Canada. I am
satisfied that Mr. Mugesera’s very serious act is important and
significant, in that it is associated with serious violence or harm to other
persons. I am aware [that] the exception in paragraph [sic] 115(2)(6)
regarding violations of human or international rights applies to Convention
refugees or protected persons, and I am satisfied that Mr. Mugesera should
not be allowed to remain in Canada because of the nature and severity of the
acts he personally committed under our internal laws, applying the reasonable
grounds standard.
[42]
In
addition, the Rwandan authorities issued an arrest warrant against the
applicant. Although the applicant has not at this time been convicted by a
final judgment and beyond a reasonable doubt, the fact that the Rwandan
authorities issued an arrest warrant shows that the applicant must be the
subject of an investigation and possibly will stand trial on the allegations
against him. In his decision under subsection 115(2) of the IRPA, the
delegate took into account the Rwandan legal system and the diplomatic
assurances given to Canada and found that the applicant will have the right to
a full and fair trial. The purpose of the Convention is certainly not to permit
an individual to evade the law.
[43]
In
light of the foregoing, the applicant’s arguments do not raise a serious issue.
Section 7
of the Charter and Canada’s international obligations
[44]
The
applicant contends that section 7 of the Charter will be breached if he is
removed from Canada and that Canada would violate the “Civil Covenant” (International
Covenant on Civil and Political Rights) and the Canadian Bill of Rights.
[45]
In
this case, it appears from the decision that the Minister’s delegate considered
all the circumstances of the case when he found that the applicant would not be
at risk of persecution, torture or cruel and unusual treatment or punishment
should he be returned to Rwanda and, consequently, that he could authorize his
removal to the country in question (Decision of the Minister’s delegate at
pages 39 to 74 regarding the risk assessment).
[46]
In
this respect, the Supreme Court of Canada has maintained on a number of
occasions that a Court must show deference when reviewing a minister’s decision
to enforce a removal order. In Suresh v Canada (Minister of Citizenship and Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3, the Court stated the following:
. . . the Minister’s decision
on whether a refugee faces a substantial risk of torture upon deportation
should be overturned only if it is not supported on the evidence or
fails to consider the appropriate factors. The court should not reweigh
the factors or interfere merely because it would have come to a different
conclusion.
[Emphasis added].
(Also, Chieu v Canada (Minister
of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84; Al Sagban
v Canada (Minister of Citizenship and Immigration), 2002 SCC 4, [2002] 1
SCR 133).
[47]
The
applicant must demonstrate that he will be persecuted and/or subjected to
torture and mistreatment if he is returned to his country, which he has not
done.
[48]
The
applicant has been afforded all the procedural guarantees. The Minister’s
representative provided appropriate procedural guarantees in that the applicant
was sufficiently informed of the proceeding against him, had a full and
complete opportunity to respond to it and was given written reasons for the
decision. Furthermore, it appears from the decision of the Minister’s delegate
that, since 2005, the applicant has benefited from a number of significant
extensions of time to make his case (Decision of the Minister’s delegate at
pages 5 to 7).
Applicant’s
arguments do not raise a serious issue
[49]
The
applicant argues at paragraphs 31 and following of his submissions that the Minister’s
delegate relied on assurances given by Rwanda without considering the evidence filed
by the applicant who showed, according to him, that these assurances are unreliable.
[50]
First,
it appears from the reasons of the Minister’s delegate that his findings
regarding the risks of return are not based solely on the diplomatic
assurances given by the Rwandan government but on an assessment of all the
evidence in the record on a number of risk factors, including all the
representations submitted.
[51]
Second,
a review of the reasons for decision does not support the applicant’s
submissions that evidence was disregarded. After summarizing the assurances
provided by the Rwandan government, the Minister’s delegate, on the contrary,
appropriately considered the evidence submitted to the effect that these
assurances can be considered reliable given the human rights record in Rwanda
since the genocide, the involvement of the Rwandan Patriotic Front [RPF] in
human rights violations and, specifically, the responsibility of the RPF and
Paul Kagamé in the genocide. The Minister’s delegate also took into
consideration the fact that Amnesty International, Human Rights Watch and other
NGOs are firmly opposed to the use of diplomatic assurances.
[52]
After
considering all the evidence, the Minister’s delegate determined the following,
on page 70 of the decision, with respect to the diplomatic assurances provided:
[translation]
They are not notes written in general
terms but refer clearly, unequivocally, to specific rights, which adds to the
value, in my opinion.
I noted that the record of human rights since the genocide occurred is
problematic, but I also recognize that, in many respects, the Rwandan government
has made enormous efforts to surmount the chaos that prevailed after the
tragedy it experienced. The reports identified these efforts not only in the
ten years following the genocide but also in the more recent reports. Although
human rights violations are still reported, I found that the probability that
Mr. Mugesera would be subjected to torture and cruel and unusual treatment
or punishment was not demonstrated.
There is no evidence before me that
assurances provided by the Rwandan government in the past were not adhered to.
Although the past human rights record must be considered when the time comes to
assess the weight to be given to assurances, the suggestion that it must be
assumed that the government is acting in bad faith cannot be accepted in the
absence of demonstrated breaches of past assurances. [Emphasis added]
[53]
Last,
still with respect to assessing the probative value of the assurances, the
Minister’s delegate considered the fact that the applicant has a high profile
and has been the subject of intense media scrutiny. Accordingly, the Minister’s
delegate found that the Rwandan authorities will pay particular attention to
his rights and will ensure that he receives a full and fair trial:
[translation]
One must also take into consideration the
intense media scrutiny that Mr. Mugesera has been the subject of until now
and the possible ramifications for a state like Rwanda of not complying with
the assurances, given the fact that Rwanda and other jurisdictions have
requested transfers from the ICTR under extradition applications. Although it
cannot be determined in advance how much weight the Rwandan government would
give to such ramifications, it is reasonable to conclude that the damage in
terms of international credibility and diplomatic relations would be
significant, in the context of the stated objective to prosecute persons
suspected of genocide and the support that Rwanda has from the international
community, including Canada, to rebuild a country devastated by genocide. [Emphasis
added]
(Decision
of the Minister’s delegate at page 70).
[54]
In
a recent decision concerning an assessment by the Minister’s delegate of
assurances provided by the Chinese government, the Court declined to make its
own assessment of the value of the assurances and found that the assessment did
not raise a serious issue (Lai Cheong Sing v Canada (Minister of
Citizenship and Immigration), 2011 FC 915).
[55]
The
applicant did not demonstrate that the Minister’s delegate disregarded
evidence. Although the applicant does not agree with the assessment made by the
Minister’s delegate, it is for the Minister’s delegate and not the applicant to
assess the evidence, and the delegate’s findings in this regard are reviewable
on the reasonableness standard. In Nagalingam, above, at paragraphs 32‑33,
the Federal Court of Appeal found, in light of Suresh, above, and Dunsmuir,
above, that a high degree of deference is to be afforded to the
Minister’s representatives such that the appropriate standard of review is
reasonableness.
[56]
Thus,
the applicant’s submissions have failed to establish that the decision of the
Minister’s delegate was unreasonable and there is, therefore, no serious issue
to be tried with respect to the application for judicial review he filed against
that decision.
[57]
Accordingly,
the stay motion could be dismissed on this ground alone.
B. Irreparable harm
[58]
Recently
in Jeyamohan v Canada (Minister of Citizenship and Immigration), 2010 FC
1081, Justice Danièle Tremblay‑Lamer stated:
[37] In Ragupathy v. Canada (Minister
of Citizenship and Immigration), 2006 FCA 151, at paragraph 18, the
Federal Court of Appeal proposed a framework for the delegate to apply, once it
has been established that a protected person is inadmissible on grounds of
serious criminality and constitutes a danger to the public, in order for the
delegate to formulate his or her opinion under paragraph 115(2)(a)
of the IRPA:
. . If, on the other hand, the
delegate is of the opinion that the person is a danger to the public, the
delegate must then assess whether, and to what extent, the person would be at
risk of persecution, torture or other inhuman punishment or treatment if he was
removed. At this stage, the delegate must determine how much of a danger the
person’s continuing presence presents, in order to balance the risk and,
apparently, other humanitarian and compassionate circumstances, against the
magnitude of the danger to the public if he remains.
[38] In Almrei v. Canada
(Minister of Citizenship and Immigration), 2005 FC 355,
Justice Blanchard concluded that the threshold for determining whether refoulement
is possible is to ask whether it will expose the applicant to a serious risk of
torture. This risk must be personal and present and be assessed on the basis of
criteria that go beyond “mere theory” or “suspicion”:
If the risk is not established, there is
no need to pursue the analysis since the applicant is not entitled to the
protection afforded by subsection 115(1) of the IRPA.
[59]
It
is settled law that the fact that an applicant has been granted “Convention
refugee” status in the past is not sufficient to establish a present risk
under sections 96 and 97 of the IRPA (Nagalingam, above, at paragraph 25;
Camara v Canada (Minister of Citizenship and Immigration), 2006 FC
168 at paragraph 58).
[60]
Moreover,
the assessment of the alleged risk must be personal or shared by others
who are in a similar situation. This is apparent from sections 96 and 97 of the
IRPA.
[61]
In
this case, the Minister’s delegate thoroughly analyzed the risk that the applicant
could face if he were removed.
[62]
The
Minister’s delegate conducted a comprehensive and nuanced analysis of the
documentary evidence concerning all the allegations of risk that were advanced.
The Minister’s delegate considered the applicant’s specific allegations and
assessed them on the basis of the documentary evidence in the record.
[63]
With
respect to section 97 of the IRPA, the Minister’s delegate found as
follows on page 74:
[translation]
For the above‑noted reasons, on the
balance of probabilities, it is my opinion that Mr. Mugesera is not at
risk of torture, considering the findings that I made on the recent human
rights situation in Rwanda and the improvements made by the government over the
years, and given the heavy media coverage and the surveillance that he will be
subject to should he be returned to the Rwandan authorities. I am satisfied
that the Rwandan government will comply with the assurances it has provided
given the international pressure and the diplomatic repercussions that could follow.
On the same basis, I am satisfied that he is not at risk of cruel and unusual
treatment or punishment although it is clear that he is at risk of a long
period of detention if he is convicted, in what will likely be difficult
conditions.
[64]
After
a comprehensive review of the documents on country conditions as well as the
evidence directly related to the applicant (written assurances given by the
Government of Rwanda to the Government of Canada), the Minister’s delegate
reasonably determined that he will not be at risk of torture or cruel and
unusual treatment or punishment in that country.
[65]
The
applicant has not established that the decision breached section 7 of the
Charter. On the contrary, the Minister’s delegate assessed the risks the
applicant would face specifically to ensure that his refoulement would not
contravene section 7 of the Charter.
[66]
Moreover,
in the last few months, the Appeals Chamber of the International Criminal
Tribunal for Rwanda and the European Court of Human Rights agreed to transfer
to the Rwandan authorities Rwandans charged, inter alia, with
participating in genocide and found:
·
They
accepted commitments made the Rwandan government;
·
The
Rwandan judicial system cannot be considered as a system lacking in
impartiality and independence. Hence, accused persons will receive a full and fair
trial;
·
Detention
conditions for accused persons comply with international standards, and they
will not face mistreatment.
[67]
These
judgments from two recognized international tribunals confirm the findings made
by the Minister’s delegate, namely, that it is reasonable to believe in the
good faith of the Rwandan government and to conclude that the rights of
individuals charged with participating in genocide will be respected and that
they will not be persecuted.
[68]
Recently,
this Court stated that it must be assumed that a government will comply with
assurances given to the Canadian government:
[6] It
is for these reasons that Canada requested strict, clear and unequivocal
assurances from the Chinese Government in respect of the Applicant, Cheong Sing
Lai, a fugitive from the Chinese justice system, who has been in Canada since
1999 and who is now under a deportation order. These assurances have now been
received. It is assumed that the assurances of the Chinese Government, as
per its written promises, will be kept, as the Chinese Government’s honour and
face is, and will be, bound and kept respectively, by the monitoring for
the lifetime of the Applicant and, eventually, in time to come, in the reason
for his eventual passing, as to whether it be natural or otherwise, recognizing
fully well the age and current state of health of the Applicant (as per medical
monitoring measures, also outlined in the assurances). [Emphasis added.]
(Lai Cheong Sing, above)
[69]
In
the circumstances, the applicant’s allegations are clearly insufficient to
establish that his return to Rwanda would cause him irreparable harm.
[70]
As
a result, and in the absence of a serious issue to be tried by this Court, the
harm the applicant alleges has not been demonstrated.
C. Balance of convenience
[71]
The
balance of convenience favours the Minister. Subsection 48(2) of the IRPA
provides that a removal order must be enforced as soon as is reasonably
practicable. Since the time when the Minister’s delegate issued his decision under
subsection 115(2) of the IRPA, circumstances have been such that the
removal order can be enforced. As the Federal Court of Appeal recognized, the
removal of an applicant is not simply a question of administrative convenience.
It implicates the integrity and fairness of, and public confidence in, Canada's
system of immigration control (Selliah v Canada (Minister of
Citizenship and Immigration), 2004 FCA 261 at paragraph 22).
[72]
In
the absence of serious issues and irreparable harm, the balance of convenience
favours the Minister, who has an interest in having the removal order enforced
on the scheduled date (Mobley v MCI, (January 18, 1995)
IMM-106-95).
[73]
One
of the objectives of the IRPA is to promote international justice and security
by fostering respect for human rights.
[74]
As
the Supreme Court of Canada recognized in Mugesera, above,
shortly after the Tutsi were massacred in Gisenyi, the applicant, as
vice-president of the MRND, asked the population at large, specifically the
Hutu, to exterminate the Tutsi. Less than a year and a half after his
speech, over a million Tutsi and moderate Hutu had been massacred notably
through the MRND militia. The applicant incited to hatred, genocide and murder
and committed a crime against humanity. These are serious crimes that run
counter to Canadian values.
[75]
The
applicant never showed any [translation]
“ remorse regarding his conduct in Rwanda.” Furthermore, he never recognized
the genocide of Tutsi and Hutu that was planned and organized by the Rwandan
government (Decision of the Minister’s delegate at page 77).
[76]
The
applicant has been living in Canada for almost 20 years and has taken advantage
of every opportunity to be heard with respect to both his ineligibility and the
Minister’s opinion issued under paragraph 115(2)(b) of the IRPA.
[77]
It
is in Canada’s interest to prevent individuals who, like the applicant, have
committed serious crimes from remaining in the country. In this case, it is
unquestionable that the public interest must prevail.
[78]
Accordingly,
the balance of convenience favours the Minister.
VII. Conclusion
[79]
The
factual basis cannot be reassessed. The judgment of the Supreme Court of
Canada cannot be overturned directly or indirectly by reconsidering the
validity of section 115 of the IRPA as the applicant would like. At
this final stage, it is also important to note that the judicial review of the
decision of the Minister’s delegate sought by the applicant also cannot
address the legitimacy of the removal order again without contradicting the
disposition of the Supreme Court of Canada in Mugesera, which reads:
179 Based on Mr. Duquette’s
findings of fact, each element of the offence in s. 7(3.76) of the Criminal
Code has been made out. We are therefore of the opinion that reasonable
grounds exist to believe that Mr. Mugesera committed a crime against
humanity and is therefore inadmissible to Canada by virtue of ss. 27(1)(g)
and 19(1)(j) of the Immigration Act. [Emphasis added].
[80]
According
to this reasoning of the Supreme Court of Canada, if Léon Mugesera were to
remain in Canada following the assurances received from Rwanda, this Court
would be completely contradicting the decision of the Supreme Court.
[81]
For
all the foregoing reasons, the Court dismisses the applicant’s application for
a stay.
JUDGMENT
THE COURT
ORDERS
that the applicant’s application for a stay is dismissed. There is no question
of general importance to certify.
“Michel
M.J.Shore”
Certified
true translation
Mary
Jo Egan, LLB
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