Date: 20091022
Docket: IMM-1930-09
Citation: 2009
FC 1075
Ottawa, Ontario, October 22, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
TIMOTHY
ROSHAUN FOX
Respondent
FURTHER REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On October 5, 2009, I issued reasons in
this matter. At the request of counsel at the hearing, I agreed to give them an
opportunity to review my reasons in order to decide whether to request that I
certify questions for consideration in a possible appeal to the Federal Court
of Appeal.
[2]
On October 13, 2009, counsel for the
Respondent requested that I certify the following question:
Does a member of the Immigration Division
(“ID”) presiding over an admissibility hearing concerning an allegation of
serious criminality for an offence committed in Canada have the jurisdiction to
adjourn the hearing for the purpose of providing the person concerned
humanitarian and compassionate relief from the effects of re-incarceration that
would ensue pursuant to section 128(5) of the Corrections and Conditional
Release Act (“CCRA”)?
[3]
On October 19, 2009, counsel for the
Applicant made submissions opposing the certification of that question.
[4]
Pursuant to paragraph 74(d) of the Immigration
and Refugee Protection Act, I can only certify a question if it is a
“serious” one “of general importance”. It is well established that in order for
a question to be certified, it must be one which “transcends the interests of
the immediate parties to the litigation and contemplates issues of broad
significance or general application”. In addition, in order to be certified,
the question must also be one that is determinative of the appeal. The
certification process is not “to be equated with the reference process
established by section 18.3 of the Federal Courts Act”. Nor is it to be
used as a tool to obtain “declaratory judgments on fine questions which need
not be decided in order to dispose of a particular case”: Canada (Minister
of Citizenship and Immigration) v. Liyanagamage
(1994), 176 N.R. 4 (F.C.A.), at para. 4; Chu v. Canada (Minister
of Citizenship and Immigration) (1996), 116 F.T.R. 68 (F.C.), at para. 2.
[5]
I believe it is clear
from my reasons that the basis upon which the Minister’s application for
judicial review was granted is my finding that a member of the ID presiding
over an admissibility hearing concerning an allegation of serious criminality
does not have jurisdiction to adjourn the hearing for humanitarian and
compassionate considerations. To that extent, I agree with the respondent that
the question submitted is dispositive of the matter.
[6]
I am also in
agreement with the respondent that the proposed question transcends the
interests of this specific case and raises issues of general importance. Indeed,
counsel for the Minister stated at the hearing that the decision could have a
potential impact on a large number of cases before the ID, as there are many
individuals in similar circumstances to the respondent. Moreover, there is no
case law addressing the jurisdiction of an ID member to consider humanitarian
reasons for granting an adjournment request. The only case addressing the
discretion of an ID member to adjourn admissibility hearings arose in a different
context, i.e. that of an admissibility hearing having been postponed pending
the outcome of an appeal of the criminal conviction upon which the allegation
of serious criminality was based: Canada (Minister of Citizenship and Immigration) v. Da Silva, 1999 CanLII 8825
(F.C.).
[7]
In those
circumstances, and in spite of my view that neither the Immigration and
Refugee Protection Act nor the Immigration Division Rules grant a
discretion to adjourn a hearing for humanitarian and compassionate reasons, it
might be best to seek further clarification from the Court of Appeal and to
certify the question proposed by the respondent.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
the following question be certified:
Does a member of the Immigration Division
(“ID”) presiding over an admissibility hearing concerning an allegation of
serious criminality for an offence committed in Canada have the jurisdiction to
adjourn the hearing for the purpose of providing the person concerned
humanitarian and compassionate relief from the effects of re-incarceration that
would ensue pursuant to section 128(5) of the Corrections and Conditional
Release Act (“CCRA”)?
"Yves
de Montigny"
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