Date: 20070412
Docket: IMM-3375-06
Citation: 2007 FC 377
BETWEEN:
SHAUNE
DWANE HIGGINS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow a brief hearing on the 5th of April, 2007 in
connection with an application for judicial review of a determination of an
officer in the Respondent’s Ministry wherein he or she denied a request on
behalf of the Applicant to defer the execution of a removal order outstanding against
him. The letter conveying the Officer’s determination is dated the 19th
of June, 2006. It concluded:
Mr. Higgins is expected
to report for removal on 7 July 2006, as was previously arranged.
[2]
By
Order dated the 29th of June, 2006, this Court stayed removal of the
Applicant from Canada pending final determination of this application
for judicial review. That stay of removal is central to the analysis and
conclusion that follow.
[3]
In
Wang v. Canada (Minister of Citizenship and Immigration), Justice
Pelletier, then of the Trial Division of the Federal Court of Canada, wrote at
paragraph 8 of his reasons:
…But where the motion
for a stay is in relation to a refusal to defer removal, the fact of granting
the stay gives the applicant that which the removal officer refused him/her.
Since the decision in issue in the application for judicial review is the
refusal to defer removal, granting the stay gives the applicant his/her remedy
before the merits of the application for judicial review have been addressed.
It is in this sense that one can say that the disposition of the motion for a
stay of execution decides the underlying application for judicial review.
I am satisfied that the foregoing brief
quotation is dispositive of this application for judicial review on its
particular facts.
BACKGROUND
[4]
The
Applicant is a citizen of Jamaica. He entered Canada in June,
2004 on a seasonal farm worker visa. Within a few days of commencing his farm
worker employment in Canada, he left that employment and went “underground”.
An exclusion order and arrest warrant were issued against the Applicant in
February of 2005.
[5]
Some
time later, the Applicant “surfaced”, presented himself to immigration
authorities and sought to file a Convention refugee claim. He was precluded
from doing so by the exclusion order outstanding against him. He was briefly
detained. He was released on the posting of bail by the woman, a Canadian
citizen, whom he married in October of 2005. The Applicant and his spouse
filed an inland spousal sponsorship application seeking landing for the
Applicant from within Canada.
[6]
While
the inland spousal sponsorship application was outstanding, the Respondent
undertook to remove the Applicant from Canada resulting in
a request for deferral of removal. The request for deferral was based on the
Applicant’s marriage and his relationship with his spouse and her then nine (9)
year old son who was alleged to suffer from “behavioural and social
disabilities”. While the Applicant’s spouse worked full time and supported
herself, her son and the Applicant economically, the Applicant was alleged to
remain in their home and community to provide support to the child. Further,
the Applicant and his spouse were expecting a child in December of 2006. The
request for deferral of removal was denied and that denial is the decision
underlying this application for judicial review.
[7]
Since
the request for deferral of removal was denied, the circumstances of the
Applicant and his spouse have substantially changed: first, by reason of this
Court’s Order, the Applicant has remained in Canada for more than nine (9)
months; second, the Applicant’s inland spousal sponsored application for
landing has been rejected; third, an application for landing from within Canada
on humanitarian and compassionate grounds has been filed on behalf of the
Applicant supported by substantially greater evidence regarding the
difficulties of his spouse’s son than was available at the time the request for
deferral was made; and finally, the Applicant’s child by his wife was born.
THE ISSUE
[8]
The
sole issue addressed at the hearing of this matter was “mootness” and whether,
if it is moot, this Court should nonetheless exercise its discretion to hear
and determine the application on its merits.
MOOTNESS
General Principles
[9]
The
seminal case on mootness is Borowski v. Canada (Attorney
General). In Borowski,
Justice Sopinka, for the Court, wrote at page 353 of the reasons:
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. The
relevant factors relating to the exercise of the court’s discretion are
discussed hereinafter.
The approach in recent
cases involves a two-step analysis. First, it is necessary to determine
whether the required tangible and concrete dispute has disappeared and the
issues have become academic. Second, if the response to the first question is
affirmative, it is necessary to decide if the court should exercise its
discretion to hear the case. The cases do not always make it clear whether the
term “moot” applies to cases that do not present a concrete controversy or
whether the term applies only to such of those cases as the court declines to
hear. In the interest of clarity, I consider that a case is moot if it fails
to meet the “live controversy” test. A court may nonetheless elect to address
a moot issue if the circumstances warrant.
[emphasis added]
[10]
Justice
Sopinka goes on to consider principles governing the exercise of discretion to
hear a matter, notwithstanding it is moot. At pages 358 and following, Justice
Sopinka notes:
Since the discretion
which is exercised relates to the enforcement of a policy or practice of the
court it is not surprising that a neat set of criteria does not emerge from an
examination of the cases.
[11]
The
first criterion or rationale that Justice Sopinka identifies flows from the
principle that a court’s competence to resolve legal disputes is rooted in the
adversary system. In this regard, he speaks of “collateral consequences” of
[an] outcome that will continue to provide a necessary adversarial context.
[12]
The
second broad rationale governing the exercise of discretion he describes as a
“…concern for judicial economy.” He notes that this concern must be weighed
against a circumstance in which a case raises “…an issue of public importance
of which a resolution is in the public interest.”
[13]
The
third consideration identified by Justice Sopinka is “…the need for [a] Court
to demonstrate a measure of awareness of its proper law-making function. The
Court must be sensitive to its role as the adjudicative branch in our political
framework”.
[14]
Justice
Sopinka concludes his analysis of the principles governing the exercise of
discretion with the following brief paragraph:
In exercising its
discretion in an appeal which is moot, the Court should consider the extent to
which each of the three basic rationalia for enforcement of the mootness
doctrine is present. This is not to suggest that it is a mechanical process.
The principles identified above may not all support the same conclusion. The
presence of one or two of the factors may be overborne by the absence of the
third, or vice versa.
Is this application for
judicial review moot?
[15]
On
this application for judicial review, apart from the issue of standard of
review, the Applicant raised the following issues in his written materials:
-
Did
the Officer fail to consider properly the best interests of a child directly
affected by the Applicant’s removal?
-
Was
the Officer’s decision not to defer the Applicant’s removal pending the
decision on his wife’s spousal sponsorship application patently unreasonable?
[16]
At
hearing, counsel for the Applicant withdrew the second issue in light of the
fact that, as noted earlier, the Applicant’s application for landing based on
his wife’s spousal sponsorship has, since the time of the determination under
review, been rejected.
[17]
Counsel
for the Applicant urged that the first issue, that is to say whether the best
interests of the Applicant’s spouse’s nine (9) or ten (10) year old child
allegedly suffering from behavioural or social disability and to whom the
Applicant provides substantial support, remains alive. Counsel further urges
that re-determination of that issue on the evidence that was before the Officer
or, perhaps more appropriately, on the evidence now available, together with
any directions that this Court might see fit to provide to guide the re-determination,
would be of substantial value, as between the parties to this judicial review.
ANALYSIS
[18]
It
is beyond question that: first, the removal arrangements made by the
Respondent for the Applicant are no longer relevant; secondly, no removal
arrangements for the Applicant are currently in place; and finally,
substantially more evidence is now available in relation to any disability that
the Applicant’s spouse’s nine (9) or ten (10) year old son might suffer from,
his needs in relation to any such disability and any role that the Applicant
plays and is capable of continuing to play in relation to that son. Further,
an application for landing of the Applicant from within Canada on
humanitarian and compassionate grounds is before immigration authorities and
provides a substantially more appropriate platform from which to determine the
best interests of the boy than does a request for deferral where the issue for
consideration is whether removal at a particular arranged time is “reasonably
practicable”.
Further, it is beyond question that, if the Respondent remains determined to
remove the Applicant before his humanitarian and compassionate grounds
application is determined, it would be open to the Applicant to request a new
deferral of removal, based on all of the current circumstances and evidence
and, if that request is denied, a further application for leave and for
judicial review would be open to him together with a further motion before this
Court seeking a stay of removal pending the final determination of that new
application for leave and for judicial review.
[19]
The
issue of mootness has been the subject of consideration by this Court in the
immigration
context on a number of previous occasions. In at
least one of those cases, it has been applied so that the merits of the
application for judicial review were not heard.
[20]
Given
the foregoing, and given the principles of mootness recited above, the Court is
satisfied that consideration of this application for judicial review on its
merits would not have the effect of resolving any controversy affecting the
rights of the parties to this matter. The issue of the timeliness or
untimeliness of any arrangements made in the future to remove the Applicant
from Canada would
continue to be a live issue between the parties. It simply is not a live issue
between the parties at this time and in this context.
[21]
This
application for judicial review is moot.
[22]
Further,
against the criteria governing the exercise of discretion to hear a matter notwithstanding
that it is moot, the Court finds no basis whatsoever to exercise its discretion
to hear this matter.
[23]
Before
the Court, counsel for the Respondent endorsed the foregoing conclusions.
CONCLUSION
[24]
Based
on the foregoing brief analysis, and based on the particular facts underlying
this application for judicial review, I am satisfied that it is moot and I
decline to exercise my discretion to nonetheless hear it on its merits. This
application for judicial review will be dismissed as moot.
CERTIFICATION OF A
QUESTION
[25]
At
the close of hearing, counsel were consulted on the issue of certification of a
question. Counsel for the Applicant requested an opportunity to consider
certification and, if appropriate, to submit a question in writing. The Court
agreed to this request. A timetable for submissions was established. Whether
or not that timetable has expired before the issue of these reasons, the
reasons will nonetheless be issued at the first opportunity. An Order giving
effect to these reasons will only issue once the Court has had an opportunity
to consider submissions and to determine whether or not a question should be
certified.
“Frederick
E. Gibson”
Ottawa, Ontario
April
12, 2007
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