Date: 20121109
Docket: IMM-1968-12
Citation: 2012 FC 1309
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 9, 2012
Present: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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DIAKARIDIA CAMARA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision by a removal officer pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC
(2001), c 27 [IRPA]. The officer’s decision, dated February 24, 2012, was
to deny the request to stay the removal pending a decision in his application
for a pre-removal risk assessment [PRRA]. The applicant claims that he is
entitled to a PRRA decision before his removal despite section 166 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations], and that a
stay of removal should be granted accordingly. On September 14, 2012, he
was notified of a negative PRRA decision.
[2]
A decision having
been rendered with respect to the PRRA application, the parties agree that the
application for judicial review is now moot. However, the applicant is
persisting and seeks public interest standing so that the questions of law
related to section 166 of the Regulations can be decided. This raises
constitutional issues and issues of interpretation.
[3]
A
preliminary issue is whether this Court should exercise its discretion to hear
this case despite its mootness. This requires examining the facts at the basis
of the application for judicial review and the legal framework for evaluating
the exercise of this Court’s discretion, in light of the arguments presented by
the parties.
I. Facts
and decision under review
[4]
Mr. Camara
arrived at Pierre-Elliott Trudeau Airport from Mali with a visitor’s visa on
February 16, 2012.
[5]
A
removal order was issued against him at the point of entry. The order was
issued because the applicant had made contradictory statements, first saying
that he had come to Canada as a visitor and later saying that he had come to
work. He stated at that time that he did not fear returning to his country. He
was placed in detention.
[6]
The
applicant made a claim for refugee protection on February 18, 2012. He
alleges that he was persecuted in Mali because of his sexual orientation. He
states that he did not discuss this situation with the immigration officers
upon his arrival because he believed that they were police officers and did not
trust them.
[7]
On
February 20, the Immigration Division of the Immigration and Refugee Board conducted
a review of the reasons for the applicant’s detention.
[8]
He
was given the opportunity to make a pre-removal risk assessment [PRRA]
application. The application was prepared and filed on an urgent basis on February 22,
2012, in Montréal.
[9]
The
applicant asked the removal officer to stay his removal pending the outcome of
his PRRA application. The officer replied in a letter dated February 22,
2012, that pursuant to section 166 of the Regulations, he could not obtain
an administrative stay of the removal order while the PRRA application was
under review. The officer also notified the applicant that an application for a
stay is generally only considered once a removal date has been set.
[10]
On
February 24, 2012, the applicant met with the removal officer, who
explained the removal proceedings to him. The officer reiterated his position
that the applicant could be removed prior to a PRRA decision.
[11]
On
February 27, 2012, the applicant was notified by letter that his removal
was scheduled for the next day.
[12]
The
next day, the applicant filed an application for judicial review. The applicant
also applied for a judicial stay, which was granted by the Federal Court. It
ordered a stay of the removal order pending the outcome of the application for
leave and judicial review.
[13]
He
was notified of the negative PRRA decision on September 14, 2012.
II. Applicant’s
submissions
[14]
The
applicant acknowledges that this application is moot and asks that the Federal
Court exercise its discretion to hear his constitutional challenge of section
166 of the Regulations in light of section 7 of the Canadian Charter of
Rights and Freedoms as well as his challenge of the legality of the removal
officer’s interpretation of section 166.
[15]
The
applicant states that the parties retain an adversarial stake in the issues. He
also submits that judicial economy weighs in favour of this Court’s exercising
its discretion, given that the legality of section 166 of the Regulations
might otherwise evade review by the Court; the resulting social and human cost
favours the applicant.
[16]
Finally,
the facts leading to this judicial review are repetitive and short-term, and it
appears that similar cases have been identified. The applicant claims that the
situation could recur without it being possible for the person to exercise his
or her rights on account of an expedited removal and the lack of resources of
those who find themselves in such a situation.
[17]
Furthermore,
for this issue to come before the Federal Court for a decision without being
moot, an application for judicial review of the removal officer’s decision
would have to be brought and an application for stay granted. There is a risk
that the factual framework of this case will repeat itself and that another
applicant’s challenge will become moot before the constitutional issue can be
decided.
[18]
Finally,
it is argued that the social and human cost at stake in this case is
considerable. The constitutional issue relates to section 7 of the
Charter, which enshrines the right to life, liberty and security.
III. Respondent’s
submissions
[19]
The
respondent submits that the Court should not hear this case because the issue
is moot, as the PRRA application has been decided and the applicant does not
have the necessary standing to challenge the constitutionality of
section 166 of the Regulations or the legality of the removal officer’s
decision.
[20]
The respondent
submits that the applicant lacks the necessary standing given that he has no
interest in the outcome of this dispute. Moreover, it is clear that
section 166 of the Regulations does not limit the removal officer’s
discretion to grant a stay and that the parties retain no adversarial stake in
the issues.
[21]
Also,
an application could be brought to the Court relating to the validity of
section 166 of the Regulations in a different set of circumstances from
that of the applicant. The applicant is in fact asking this Court to render a
judicial opinion on the interpretation of the Charter in the abstract, as no
dispute remains between the parties.
[22]
As
for whether the applicant has public interest standing, the respondent is of
the view that the criteria are not met in this case. First, the applicant has
not raised any serious judicial issue. Furthermore, the applicant has no real
interest in the outcome of the issue, and this application is not a reasonable
and effective way to bring the issue before the courts.
IV. Issue
[23]
Since
the dispute is now moot, should the Court exercise its discretion and hear the
application?
V. Analysis
[24]
Given
that the applicant’s PRRA was rejected, it is clear that this application for
judicial review is moot. The application sought to quash the removal officer’s
decision refusing to grant a stay of his removal order pending the outcome of
his PRRA application. A decision has been reached; his PRRA application was
rejected.
[25]
The
proper framework for the discretion analysis is found in Borowski v Canada (Attorney
General), [1989] 1 S.C.R. 342, 1989 CanLII 123 (SCC)
[Borowski], which establishes the criteria to be applied by the Court in
determining whether it should exercise its discretion and hear the parties
despite the mootness of the application. It must then be decided whether the
applicant has the necessary standing to challenge the constitutionality of a
legislative provision and the legality of the officer’s interpretation of that
provision.
[26]
When
a case involving a challenge to a law is moot, the judge may exercise his or
her discretion and decide to hear the case. In performing the analysis, the
Court should be guided by three criteria, as stated by the Supreme Court in Borowski,
above, at paragraph 15:
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 present 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. . . .
[27]
In
this case, the first criterion is not met, given that no live controversy
remains between the parties. The refusal of the PRRA application brought the
matter to a close.
[28]
As
for the second criterion, Borowski, above, states that applying judicial
resources to cases that are capable of repetition and are of a short duration
may be a reason for the judge to exercise his or her discretion. However, it
would still be preferable to decide the issue in a genuinely adversarial
context, as the issues of the constitutionality of section 166 of the Regulations
and the legality of the removal officer’s refusal to grant a stay pursuant to
this legislative provision will eventually arise in a dispute where their
resolution will have an impact on the applicant’s rights.
[29]
Moreover,
should the Court decide to deal with the issues in this case, the decision would
have no practical effect on the parties’ rights. Since the stay of the
applicant’s removal was obtained pending the outcome of his PRRA application,
the decision regarding the constitutionality of section 166 of the
Regulations and the legality of its interpretation by the removal officer will
have no effect on his rights.
[30]
Finally,
with respect to the third criterion, the Supreme Court states that
“[p]ronouncing 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” (Borowski, above). It
is more appropriate for the Court to review the legality of a legislative
provision when the outcome has a real impact on the rights of a party. That
way, a decision is rendered that takes into account the facts in the case, and
the result will therefore have a practical effect on the rights of a party. If
it were otherwise, the result would be an encroachment of judicial power on the
power of the executive, through the transformation of an appeal into a
reference.
[31]
Gonzalez-Rubio Suescan v Canada
(Minister of Citizenship and Immigration), 2007 FC 438, 2007 CarswellNat
1027 [Suescan], involves a factual situation similar to the one before
me. The applicant was subject to a removal order upon his arrival at the port
of entry. It had been decided that he was not eligible for refugee protection
pursuant to paragraph 101(1)(c) of the IRPA. He applied for
judicial review of that decision, seeking to be constitutionally exempted from
the application of paragraph 101(1)(c) of the IRPA, alleging that
removing him to his country while a decision was still pending with respect to
the risks he faced there was contrary to the Charter. However, between the time
the applicant filed his application for judicial review and the time of the
hearing, his PRRA application was rejected. The Court therefore held that “[s]ince this case arises out of a concern
that the absence of a risk assessment violates the Charter, any live controversy
between the parties has been dissolved by the PRRA decision” (Suescan, above, at paragraph
25). The judge therefore
declined to hear the case on that basis.
[32]
Although,
in that case, the applicant sought a constitutional exemption from the
application of paragraph 101(1)(c) of the IRPA and was not
challenging its constitutionality, as in this case, the principle of mootness
of an application for judicial review established in that case remains
applicable here.
[33]
I
would add that the removal officer’s decision is brief and not particularly
informative. It would have been useful to have had a decision containing a
clear explanation of the precise reasons for the refusal, the importance of the
PRRA application to this case, the involvement of section 166 of the
Regulations and the facts connected with the applicant. For example, what was
the effect of the contradictions in the explanations provided by the applicant
to the immigration officer at the point of entry on the exercise of the removal
officer’s discretion?
[34]
The
applicant has also filed two affidavits from individuals that relate, in the
form of hearsay, the experiences of people upon their arrival in Canada. Janet
Dench of the Canadian Council for Refugees and Jennifer Jeanes of Action Réfugiés Montréal describe, in
their respective affidavits, how in the performance of their duties, they have
met individuals who, like the applicant, were prevented from applying for
refugee protection and who were subject to removal before a decision was
rendered with regard to their PRRA applications. This type of evidence is not
necessarily as useful as is being argued. There are certainly other ways to
file more compelling evidence. It is important to have an appropriate factual
backdrop when asking a Court to decide an issue of constitutional law. The
usefulness of the facts in this case is minimal.
[35]
The
constitutional issue involving section 166 of the Regulations and the
issue of the interpretation of that section by removal officers are certainly
of interest. However, this case, as presented, does not have a factual backdrop
that would enable the Court to reach an informed decision. On its face, the
question of law is theoretically interesting, but the factual foundation
underlying it is weak.
[36]
A
case will eventually arise that combines the constitutional issue with an
appropriate set of facts, which will enable the Court to deal with it. This
case does not bring together these two aspects in a way that would allow the
Court to render an informed decision.
[37]
To
determine whether the applicant has public interest standing, I must apply the
test described in Canada (Minister of Justice) v Borowski, [1981] 2 S.C.R. 575,
and reiterated in Canada (Attorney General) v Downtown Eastside Sex
Workers United Against Violence Society, 2012 SCC 45 at paragraph 37 [Downtown
Eastside Sex Workers United Against Violence Society]:
In exercising the discretion to grant public interest standing, the court
must consider three factors: (1) whether there is a serious justiciable issue raised;
(2) whether the plaintiff has a real stake or a genuine interest in it; and
(3) whether, in all the circumstances, the proposed suit is a reasonable and
effective way to bring the issue before the courts: Borowski, at p. 598;
Finlay, at p. 626; Canadian Council of Churches, at p. 253; Hy
and Zel’s, at p. 690; Chaoulli, at paras. 35 and 188. The plaintiff
seeking public interest standing must persuade the court that these factors,
applied purposively and flexibly, favour granting standing. All of the other
relevant considerations being equal, a plaintiff with standing as of right will
generally be preferred.
[38]
First of all, no
serious judicial issue is raised in this case. As mentioned above, a decision
has been reached with respect to the applicant’s PRRA application. Therefore,
no live controversy remains between the parties.
[39]
In this case, the
applicant has no real stake in the outcome of the case, as a decision regarding
the constitutionality of section 166 of the Regulations and the legality of the
removal officer’s interpretation of his discretionary power to order a stay of
the removal pursuant to this legislative provision will have no effect on the
applicant’s legal position.
[40]
A
reasonable and effective manner for the courts to decide the issue of the
constitutionality of section 166 of the Regulations and the legality of its
interpretation by the removal officer is to decide it in a specific factual
context so as to render a decision that would have a real impact on a party’s
rights. This is not the case here. A situation will eventually arise in which
the legal issue at stake can be thoroughly analyzed with supporting evidence. Otherwise,
a social agency can bring the case forward, as was done in Downtown Eastside
Sex Workers United Against Violence Society, above. In such a case, the
parties can mount a complete case with evidence and submissions on the law, and
the public interest would be well represented.
[41]
In
this case, the applicant is seeking public interest standing, but it is
important to remember that he is in Canada illegally. The stay he was granted
allows him to remain on Canadian soil only for the duration of this judicial
review. By claiming public interest standing, he is in fact delaying the
outcome of the decision, even though the only possible outcome for him is
negative. If a Court hearing this action were to decide that section 166
of the Regulations is unconstitutional, this would not strengthen the
applicant’s position. It is difficult to grant the applicant public interest standing
in light of his status in Canada and the circumstances of his arrival. I am of
the view that this is not a factor in favour of granting public interest
standing in such a situation.
[42]
Given
the particular fact situation of this case, the PRRA decision communicated on
September 14, 2012, the fact that the dispute between the parties is now
moot and that the Court, for the above-mentioned reasons, does not intend to
exercise its discretion to hear the constitutional issue raised, it would
appear to me that no question need be certified. The matter is fact-specific
and not of general importance. However, if a party wishes to submit a question,
it may do so within five days of receiving this order, and the other party will
have five additional days to comment on it.
ORDER
THIS COURT ORDERS that this application for
judicial review of the removal officer’s decision be dismissed, the dispute
between the parties now being moot. With respect to the preliminary issue, the
Court chooses not to exercise its discretion to hear the application for
judicial review. The parties may submit a question for certification within
five days of receiving this order; if a party chooses to do so, the other party
will have five additional days to comment on it.
“Simon Noël”
__________________________
Judge
Certified true translation
Francie Gow, BCL, LLB
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