Date: 20080326
Docket: IMM-2098-07
Citation:
2008 FC 379
Montréal, Quebec, the 26th day of March 2008
Present:
The Honourable Maurice E. Lagacé
BETWEEN:
Roger Eugene Shephard
Applicant
and
Minister of Citizenship
and Immigration
and
Minister of Public Safety
and Emergency Preparedness
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant has brought an application for judicial review of the decision made
by the Refugee Protection Division (the RPD) of the Immigration and Refugee
Board on March 19, 2007, denying him refugee protection on the ground
that he was excluded under section 98 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) and also
dismissing his related application for a declaration that section 98 of
the Act is unconstitutional.
[2]
The
applicant is asking that the Court set that decision aside and declare that
section 98 of the Act is of no force or effect, on the ground that it
denies the applicant the opportunity to be granted refugee protection and
violates section 7 of the Canadian Charter of Rights and Freedoms
(the Charter), Constitution Act, 1982, S.C. 1982, c. 11, and
article 7 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, United Nations General Assembly,
New York, adopted on December 10, 1984, in force
June 26, 1987 (the Convention against Torture), in that it allows the
applicant to be removed to his country of origin, the United States, where
he could be subject to the death penalty.
FACTS
[3]
The facts
are not contested. The applicant was born in the United States on
June 12, 1985, and arrived in Canada on or about
June 16, 2006. Shortly after the applicant entered Canada, the RCMP
contacted the Canada Border Services Agency (the CBSA) and informed it that
the applicant was wanted in South Carolina, in the United States, in
connection with a murder committed during an armed robbery that took place on
June 15, 2006.
[4]
If the
applicant is convicted of the murder of which he is suspected, he is liable to
the death penalty under the South Carolina Code of Law, Title 16,
Chap. 3, ss. 16-3-2- et seq.
[5]
The
applicant was arrested by City of Montréal police on June 17, 2006,
and subsequently claimed refugee protection in Canada under section 97 of
the Act.
[6]
A conditional
removal order was made against the applicant on August 3, 2006, and
he filed his personal information form (PIF) on August 11, 2006. He
has been detained by Canadian immigration since June 17, 2006.
[7]
The
Minister of Public Safety intervened in this case at the preliminary stage to
argue that the applicant is a person referred to in article 1F of the United
Nations Convention Relating to the Status of Refugees, July 28, 1951, United
Nations Treaty Series, vol. 189, p. 137, article 1 (the Convention).
[8]
The
applicant subsequently served a notice of constitutional question on the
parties concerned and thus announced his intention of challenging the validity
of section 98 of the Act, on the ground that it provided for the exclusion
clauses in the Convention to be applied against persons who, like himself,
otherwise qualified as persons in need of protection within the meaning of
section 97 of the Act, despite the fact that Canada has ratified the
Convention against Torture and against the removal of a person to a country
where the person is in danger of being subjected to torture or cruel treatment.
[9]
At a
pre-trial conference held on December 20, 2006, counsel for the
applicant admitted that the outcome of a hearing on the merits would probably
be that his client is a person referred to in article 1F of the
Convention. Counsel for the Minister admitted that in the event the applicant
was returned to the United States, he would be exposed to the death
penalty if he were convicted of the murder he is suspected of and for which he
is wanted.
[10]
Those
admissions having been made, the parties agreed to have the constitutional
question decided on the basis of written submissions, and so the issue to be
addressed would be a single question of law: whether the applicant is entitled
to refugee protection as claimed under section 98 of the Act after he
entered Canada, notwithstanding the exclusion alleged against him.
IMPUGNED DECISION
[11]
On
March 19, 2007, after analyzing section 98 of the Act and
section F of article 1 of the Convention and considering the parties’
arguments, the Board member hearing the case decided that the section in issue
in the case did not necessarily require that a refugee claimant be deported, as
the applicant contends; it merely precluded such a claimant from being granted
refugee protection.
[12]
Having
made that finding, the Board member rejected the applicant’s argument that
section 98 of the Act was unconstitutional as being contrary to
sections 7 and 12 of the Charter and article 3 of the Convention
against Torture.
[13]
Relying on
section 98 of the Act and the admission that the applicant is a person
referred to in article 1F of the Convention, the Board member dismissed
his application, leaving the other remedies he might have under the Act intact,
however.
LEGISLATION AND CONVENTIONS
[14]
The Immigration
and Refugee Protection Act
|
95. (1) Refugee protection is conferred on a person when
|
95. (1) L’asile est la protection conférée à toute personne dès
lors que, selon le cas :
|
|
(a) the person has
been determined to be a Convention refugee or a person in similar
circumstances under a visa application and becomes a permanent resident under
the visa or a temporary resident under a temporary resident permit for
protection reasons;
|
a) sur constat
qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en
situation semblable, elle devient soit un résident permanent au titre du
visa, soit un résident temporaire au titre d’un permis de séjour délivré en
vue de sa protection;
|
|
(b) the Board determines
the person to be a Convention refugee or a person in need of protection; or
|
b) la Commission
lui reconnaît la qualité de réfugié ou celle de personne à protéger;
|
|
(c) except in the
case of a person described in subsection 112(3), the Minister allows an
application for protection.
|
c) le ministre
accorde la demande de protection, sauf si la personne est visée au
paragraphe 112(3).
|
|
...
|
...
|
|
97. (1) A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
|
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
|
|
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1
of the Convention Against Torture; or
|
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
|
|
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
|
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
|
|
(i) the person is unable or, because of that risk,
unwilling to avail themselves of the protection of that country,
|
(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
|
|
(ii) the risk would be faced by the person in
every part of that country and is not faced generally by other individuals in
or from that country,
|
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
|
|
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
|
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
|
|
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
|
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
|
(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
...
|
2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
...
|
|
98. A
person referred to in section E or F of Article 1 of the Refugee
Convention is not a Convention refugee or a person in need of protection.
...
|
98. La
personne visée aux sections E ou F de l’article premier de la Convention sur
les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
...
|
|
112. (1) A
person in Canada, other than a person referred to in subsection 115(1), may,
in accordance with the regulations, apply to the Minister for protection if
they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
...
|
112. (1) La
personne se trouvant au Canada et qui n’est pas visée au
paragraphe 115(1) peut, conformément aux règlements, demander la
protection au ministre si elle est visée par une mesure de renvoi ayant pris
effet ou nommée au certificat visé au paragraphe 77(1).
...
|
|
(3) Refugee protection may not result from an application for
protection if the person
...
|
(3)
L’asile ne peut être conféré au demandeur dans les cas suivants :
...
|
|
(c) made a claim
to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention;
...
|
c) il a été débouté de sa demande d’asile au titre de la
section F de l’article premier de la Convention sur les réfugiés
...
|
|
113. Consideration
of an application for protection shall be as follows:
...
|
113. Il est
disposé de la demande comme il suit :
...
|
|
(d)
in the case of an applicant described in subsection 112(3), consideration
shall be on the basis of the factors set out in section 97 and
|
d) s’agissant du
demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à
l’article 97 et, d’autre part :
|
|
(i) in
the case of an applicant for protection who is inadmissible on grounds of
serious criminality, whether they are a danger to the public in Canada, or
|
(i) soit du fait que le demandeur interdit
de territoire pour grande criminalité constitue un danger pour le public au
Canada,
|
|
(ii) in
the case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of
Canada.
|
(ii) soit, dans le cas de tout autre
demandeur, du fait que la demande devrait être rejetée en raison de la nature
et de la gravité de ses actes passés ou du danger qu’il constitue pour la
sécurité du Canada.
|
|
114. (1) A decision to allow the application for
protection has
(a) in the case of an applicant not
described in subsection 112(3), the effect of conferring refugee protection;
and
(b) in the case of an applicant
described in subsection 112(3), the effect of staying the removal order with
respect to a country or place in respect of which the applicant was determined
to be in need of protection.
|
114. (1) La
décision accordant la demande de protection a pour effet de conférer l’asile
au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au
paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la
mesure de renvoi le visant.
|
|
(2) If the
Minister is of the opinion that the circumstances surrounding a stay of the
enforcement of a removal order have changed, the Minister may re-examine, in
accordance with paragraph 113(d) and the regulations, the grounds
on which the application was allowed and may cancel the stay.
|
(2) Le ministre
peut révoquer le sursis s’il estime, après examen, sur la base de l’alinéa
113d) et conformément aux règlements, des motifs qui l’ont justifié,
que les circonstances l’ayant amené ont changé.
|
|
(3) If
the Minister is of the opinion that a decision to allow an application for
protection was obtained as a result of directly or indirectly misrepresenting
or withholding material facts on a relevant matter, the Minister may vacate
the decision.
|
(3) Le ministre peut annuler la décision ayant
accordé la demande de protection s’il estime qu’elle découle de présentations
erronées sur un fait important quant à un objet pertinent, ou de réticence
sur ce fait.
|
|
(4) If a decision is vacated under
subsection (3), it is nullified and the application for protection is deemed
to have been rejected
|
(4) La décision portant annulation emporte nullité de la décision
initiale et la demande de protection est réputée avoir été rejetée.
|
|
115. (1) A
protected person or a person who is recognized as a Convention refugee by
another country to which the person may be returned shall not be removed from
Canada to a country where they would be at risk of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion or at risk of torture or cruel and unusual treatment or
punishment.
|
115. (1) Ne
peut être renvoyée dans un pays où elle risque la persécution du fait de sa
race, de sa religion, de sa nationalité, de son appartenance à un groupe
social ou de ses opinions politiques, la torture ou des traitements ou peines
cruels et inusités, la personne protégée ou la personne dont il est statué
que la qualité de réfugié lui a été reconnue par un autre pays vers lequel
elle peut être renvoyée.
|
|
(2) Subsection (1) does not apply in the case
of a person
|
2) Le
paragraphe (1) ne s’applique pas à l’interdit de territoire :
|
|
(a)
who is inadmissible on grounds of serious criminality and who constitutes, in
the opinion of the Minister, a danger to the public in Canada; or
|
a) pour grande criminalité qui, selon le ministre, constitue un danger
pour le public au Canada;
|
|
(b)
who is inadmissible on grounds of security, violating human or international
rights or organized criminality if, in the opinion of the Minister, the
person should not be allowed to remain in Canada on the basis of the nature
and severity of acts committed or of danger to the security of Canada.
...
|
b) pour raison de sécurité ou pour atteinte aux droits humains ou
internationaux ou criminalité organisée si, selon le ministre, il ne devrait
pas être présent au Canada en raison soit de la nature et de la gravité de
ses actes passés, soit du danger qu’il constitue pour la sécurité du Canada.
...
|
[15]
The Canadian
Charter of Rights and Freedoms (the Charter)
|
7.
Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.
|
7. Chacun a droit à la vie, à la liberté et à la sécurité
de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité
avec les principes de justice fondamentale.
|
[16]
The
Convention relating to the Status of Refugees
|
F. The
provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
...
(b) he has
committed a serious non-political crime outside the country of refuge prior
to his admission to that country as a refugee;
...
|
F. Les dispositions de cette Convention ne seront pas
applicables aux personnes dont on aura des raisons sérieuses de penser :
...
b)
qu’elles ont commis un crime grave de droit commun en dehors du pays
d’accueil avant d’y être admises comme réfugiés;
...
|
[17]
The Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
|
ARTICLE 3
1. No State Party shall expel, return or extradite a person to
another State where there are substantial grounds for believing that he would
be in danger of being subjected to torture.
|
ARTICLE 3
1. Aucun État partie n’expulsera, ne refoulera, ni
n’extradera une personne vers un autre État où il y a des motifs sérieux de
croire qu’elle risque d’être soumise à la torture.
|
Applicable Standard of Review
[18]
The
correctness standard applies to decisions of the RPD on a question of law (Dunsmuir v.
New Brunswick, 2008 SCC 9; Pushpanathan v. Canada (M.C.I.), [1998]
1 S.C.R. 982).
[19]
Constitutional
determinations by administrative tribunals do not call for deference where, as
in this case, the constitutional validity of a statutory provision is
challenged (Dunsmuir,
supra, at paragraphs 59 and 60). The “reasonableness” standard
is not applicable.
Arguments of the Parties
[20]
The
applicant submits that the effect of applying the exclusion clause in
article 1F(b) of the Convention to reject his refugee claim is to
make the conditional removal order made by the RPD enforceable. Although the
applicant acknowledges that he is still not denied the right to claim
protection as provided in section 112 of the Act (i.e. to request a
pre-removal risk assessment, or PRRA), he stresses the fact that such
protection is within the Minister’s discretion, and the Minister may refuse it
without first obtaining assurances from the American authorities that the death
penalty will not be imposed if he is returned to his country of origin.
[21]
Based on
the fact that section 98 allows the exclusion clauses to be set up against
his claim for protection based on a risk of cruel and unusual punishment, the
applicant submits that this provision violates Canada’s international
obligations, and more specifically the Convention against Torture, which Canada
has ratified, the purpose of which is to recognize the “non-refoulement
principle” with no exclusion clause where such a risk exists.
[22]
In the
applicant’s submission, the protection to which he is entitled cannot be made
subject to the Minister’s discretion, as justification for violation of a
constitutional right as fundamental as the right to life.
[23]
The applicant
points out that the prohibition on removal to a country that applies the death
penalty is a peremptory norm of international law and that derogation from that
norm results in a violation of section 7 of the Charter. Because of the
fact that the death penalty is irreversible, there is no pressing or
substantial objective that could justify it under section 1 of the
Charter.
[24]
The
plaintiff argued that it is particularly appropriate to question the
constitutionality of section 98 of the Act at this time, since the
question has not been addressed to date, either in Barrera v. Canada
(M.E.I.), [1993] 2 F.C. 3 or Xie v. Canada (M.C.I.),
[2005] 1 F.C.R. 304, or in any other of the decisions on which the
respondent bases his arguments to the contrary.
[25]
The respondent’s
primary argument is that, contrary to the applicant’s contentions, the purpose
of section 98 of the Act is not to remove a person to his or her country
of origin, but to deny the person the right to refugee protection. In addition,
the exclusion has no direct effect on the removal order itself, and does not
operate to make it enforceable, let alone to authorize removal.
[26]
Accordingly,
the respondent argues that the applicant’s constitutional argument is
premature, unless and until the removal order has become enforceable, as is
very definitely not the case.
[27]
The
respondent also argues, in the alternative, that in any event section 98
of the Act does not violate section 7 of the Charter because the mere fact
that a claimant is denied “Convention refugee” or “person in need of
protection” status does not in any way allow the person to be removed. How,
then, can it be argued that the section in question violates the applicant’s
right to life, liberty or security of the person?
[28]
Even if we
assume that section 98 infringes the right to life and security of the
person, the respondent submits, the infringement would still be in accordance
with the principles of fundamental justice, having regard to the structure of
the Act, which provides for an independent pre‑removal risk assessment
(PRRA), thus making scrutiny under section 7 of the Charter unnecessary.
Analysis
[29]
The
applicant’s main argument comes down to an attempt to give the RPD discretion
that the Act expressly assigns to the Minister. In Xie, supra,
the Federal Court of Appeal did not share that objective, unfortunately.
[30]
Let us not
make section 98 say more than it says. When read and understood in the
context of the other provisions of the Act, the purpose of that section is not
to permit the removal of a person to his or her country of origin; it is merely
to deny the person refugee protection.
[31]
Xie, supra at paragraphs 30, 32 and 33, clearly states:
[30] But exclusion from refugee protection is not exclusion from
protection. Section 113 stipulates that persons described in subsection
112(3) are to have their applications for protection decided on the basis of
the factors set out in section 97 with additional consideration given to
the issue of whether such persons are a danger to the public in Canada or to
the security of Canada. Section 97 is the section which identifies the
grounds upon which a person may apply to be designated a person in need of
protection:
…
[32] … For persons described in subsection
112(3), the result is a stay of the deportation order in force against them.
One consequence of the distinction is that protected persons have access to the
status of permanent residents and are subject to the principle of
non-refoulement:
...
[33] That is the structure of the Act as it relates to the
determination of claims for protection. It has two streams, claims for refugee
protection and claims for protection in the context of pre-removal risk
assessments. Those who are subject to the exclusion in section 98 are
excluded from the refugee protection stream but are eligible to apply for
protection at the PRRA stage. The basis on which the claim for protection may
be advanced is the same, but the Minister can have regard to whether the
granting of protection would affect the safety of the public or the security of
Canada. If protection is granted, the result is a stay of the deportation order
in effect against the claimant. The claimant does not have the same access to
permanent resident status as does a successful claimant for refugee protection.
[32]
The
applicant’s constitutional argument therefore fails in that it conflates an
“enforceable removal order” with a removal order that, as in this case, has
“come into force”. The distinction between the two stages of the order is plain
in the Act, and the importance of the distinction is that only an “enforceable
removal order” allows for a person to be removed (s. 48(2) of the Act),
unlike a removal order that has “come into force”, which becomes enforceable
only if it is not stayed (subs. 48(1) of the Act).
[33]
When the
RPD made its decision, the removal order made against the applicant was only
conditional, and would not take effect until 15 days after notification of the
decision was given to the applicant (para. 49(2)(c) of the Act).
[34]
However,
even if the removal order has since come into force, it has still not become
enforceable, if we consider section 232 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations),
which provides as follows:
|
232. A removal order is stayed when a person is
notified by the Department under subsection 160(3) that they may make an
application under subsection 112(1) of the Act, and the stay is effective
until the earliest of the following events occurs:
|
232. Il est sursis à la mesure de renvoi dès le
moment où le ministère avise l’intéressé aux termes du paragraphe 160(3)
qu’il peut faire une demande de protection au titre du paragraphe 112(1)
de la Loi. Le sursis s’applique jusqu’au premier en date des événements
suivants :
|
|
(a)
the Department receives confirmation in writing from the person that they do
not intend to make an application;
|
a) le ministère reçoit de l’intéressé confirmation écrite qu’il n’a pas
l’intention de se prévaloir de son droit;
|
|
(b)
the person does not make an application within the period provided under
section 162;
|
b) le délai prévu à l’article 162 expire sans que l’intéressé fasse
la demande qui y est prévue;
|
|
(c)
the application for protection is rejected;
|
c) la demande de protection est rejetée;
|
|
(d)
…
|
d) …
|
|
(e)
…
|
e) …
|
|
(f)
in the case of a person to whom subsection 112(3) of the Act applies, the
stay is cancelled under subsection 114(2) of the Act.
|
f) s’agissant d’une personne visée au paragraphe 112(3) de la Loi,
la révocation du sursis prévue au paragraphe 114(2) de la Loi.
|
[35]
This means
that the stay applies until there is a decision on the application for
protection, which the Minister is required by subsections 160(1) and (3)
of the Regulations to allow the applicant to make under section 112(1) of
the Act.
[36]
Given that
the Minister is required to allow the applicant to make an application for
protection notwithstanding denial of refugee protection by the RPD, and having
regard to the fact that the application for protection stays the removal, the
necessary result is that the decision of the RPD cannot operate to make the
removal enforceable, let alone to authorize removal.
[37]
The
applicant is still not being denied his right to request a risk assessment on
the merits (PRRA), and if he does his application will be assessed based on the
risk factors listed in section 97 of the Act. It is therefore incorrect to
say that the risks faced by the applicant, as listed in section 97 of the
Act, will not be considered at any point before the removal order becomes enforceable,
unless he waives the risk assessment. In the event that his application is
allowed, the applicant will be granted a stay of removal for an unlimited time,
or until it is revoked by the Minister for good cause.
[38]
Accordingly,
if the removal order made against the applicant was not enforceable at the time
the RPD made its decision and is still not enforceable, it is at least
premature to conclude that it will become enforceable and that excluding the
applicant from refugee protection is the final stage in the removal process.
[39]
Having
regard to the structure of the Act, the arguments regarding the
constitutionality of section 98 of the Act are premature when they are
made before a claimant has reached the final stage of removal (Xie, supra;
to the same effect, see Arica v. Canada (Minister of Employment and
Immigration) (1995), 182 N.R. 392, at para. 14).
[40]
By
attacking section 98 of the Act, the applicant is implicitly and
erroneously assuming that being excluded from refugee protection is tantamount
to being removed from Canada. As is pointed out in Xie (supra,
para. 36), that reasoning is not consistent with the structure of the Act,
since “the purpose of the exclusion is not to remove [the applicant] from
Canada. It is to exclude [him] from refugee protection”, and he continues to
have the right to seek protection under section 112 of the Act.
[41]
The Court
is bound by that decision and must conclude that the applicant has not shown
any error in the Board member’s decision that would warrant intervention to set
it aside. Nor is there any basis for the Court to rule as to the
constitutionality of section 98, having regard to the prematurity of this
application.
[42]
The
applicant places much weight on the fact that the Minister’s decision as to
whether to grant a stay in response to a PRRA is an exercise of discretion and
the outcome cannot be foreseen. If what the applicant says is correct, however,
he is nonetheless failing to take into account the principle that the exercise
of that discretion must comply with the constitutional requirements set out in
the Charter and Canada’s international values and obligations (Suresh v.
Canada (Minister of Citizenship and Immigration), 2002 SCC 1,
paragraphs 32 and 41).
[43]
The
protection sought by the applicant against the death penalty to which he fears
he may be subjected if he is returned to his country of origin is not
necessarily to be obtained, as he vigorously argued, by way of refugee
protection in Canada.
[44]
When
the Minister exercises his discretion, he cannot ignore the fundamental values
that Canada advocates both here and internationally, and more specifically
Canada’s values in relation to the death penalty. The Minister would have to be
satisfied, before lifting the stay of removal and the removal order becoming
enforceable, that he could obtain sufficient assurances that removal of a
claimant to his or her country of origin would not be contrary to the values in
which Canada believes. The Minister can always require such assurances from the
country of origin, to protect a claimant against a sentence that violates the
principles of fundamental justice.
[45]
Denial
of refugee protection by the RPD does not deny the applicant the right to seek
protection as provided in section 112 of the Act. In the event that he
exercises that right, then despite his fears, there is nothing to suggest,
unless we impute intentions to the Minister, that the Minister would not
exercise his discretion judicially and would not adhere to Canada’s values.
[46]
For all these reasons, the Court must dismiss the applicant’s
application because it is premature and without merit in law. In making this
decision, the Court is in no way abdicating the important role it could be
asked to play to ensure that the Minister has considered the relevant factors and
complied with the requirements of the Act and the Constitution, but only at
such time as an immediate need exists.
Questions Proposed by the Applicant for
Certification
[47]
The
applicant submits the following questions for certification:
[1]
Does
denying individuals referred to in the exceptions set out in the Convention
on the Status of Refugees and the protocols thereto relating to security a
hearing before the Refugee Protection Division to consider their claim on the
merits, and preventing them from being recognized as persons in need of
protection (ss. 97-98), infringe section 7 of the Canadian Charter
of Rights and Freedoms and article 3 of the Convention against
Torture?
[2]
Does the
fact that a person who is denied judicial consideration on the merits by a
specialized tribunal (RPD) may seek a pre-removal risk assessment (PRRA) and
make representations to the Minister regarding the risk of torture or cruel
treatment amount to the absolute protection against removal to torture, in all
circumstances, provided in section 3 of the Convention against Torture?
[3]
Is it
premature to challenge the constitutional validity of section 98, which
provides for the application of the exclusion clauses in the Geneva convention
to persons claiming protection under the Convention against Torture,
before the RPD, having regard to the fact that the effect of a decision
excluding that person is to make the removal enforceable (s. 49)?
[48]
The
applicant submits that these questions, as they are formulated, are serious
questions of general importance as required by section 74(d) of the
Act.
[49]
The
respondent opposes certification of the proposed questions and submits that
none of these questions meets the tests laid down by the Federal Court of
Appeal, and that regardless of how many questions there are and how they are
worded, they have only a single purpose: to attack the constitutionality of
section 98 of the Act.
[50]
Do the
proposed questions meet the tests laid down by the Federal Court of Appeal in Canada
(M.C.I.) v. Liyanagamage, [1994] F.C.J. No. 1637 (C.A.) (QL),
[1994] 176 N.R. 4?
[4] In
order to be certified pursuant to subsection 83(1), a question must be one
which, in the opinion of the motions judge, transcends the interests of the
immediate parties to the litigation and contemplates issues of broad
significance or general application (see the useful analysis of the concept of
"importance" by Catzman J. in Rankin v. McLeod, Young, Weir Ltd.
et al. (1986), 57 O.R. (2d) 569 (Ont. H.C.)) but it must also be one that
is determinative of the appeal.
The certification process
contemplated by s. 83 of the Immigration Act is neither to be
equated with the reference process established by s. 18.3 of the Federal
Court Act, nor is it to be used as a tool to obtain from the Court of
Appeal declaratory judgments on fine questions which need not be decided in
order to dispose of a particular case.
[51]
We would
also adopt what this Court said in Huynh v. Canada, [1995]
1 F.C. 633, 646 (T.D.), aff’d [1996] 2.F.C. 976 (F.C.A.), in which it
stated that for a question to be certified, it must not only raise an issue of
law of general importance, but it must not already have been determined.
[52]
The first
question was determined by the Federal Court of Appeal in Xie, supra,
at para. 39, when it found that denying an individual referred to in
paragraph 1F of the Convention the right to have a refugee claim heard on
the merits before the RPD does not violate section 7 of the Charter; a fortiori,
therefore, it does not violate article 3 of the Convention against
Torture, which applies only, as discussed earlier, at the removal stage.
[53]
The second
question has no more conclusive effect in terms of the outcome of the appeal
and appears to be more in the nature of an attempt to obtain a declaratory
judgment on that issue, when it is not necessary to examine that question in
order to determine the outcome of this application for judicial review.
[54]
In that
question, the applicant refers to article 3 of the Convention against
Torture, which deals with the expulsion of an individual. However, having
regard to the finding on this question made earlier by the Court, and also the
answer given by the Federal Court of Appeal in Xie, supra, that
arguments regarding the constitutionality of section 98 of the Act are
premature when they are made, as in this case, before the claimant has reached
the final stage of the removal order, the second question should not be
certified.
[55]
On the
third question, the Court has explained at length, in its reasons, that it
stems from an erroneous premise that arises from the fact that the applicant is
conflating a removal order that has come into force with an enforceable removal
order. The Court recognized that distinction in Xie, supra, and
its clear answer to the question was negative, and so it should no more be
certified than the other two questions.
JUDGMENT
THE COURT, for these reasons:
- DISMISSES the application for
judicial review; and
- REFUSES to certify the
questions proposed.
“Maurice E. Lagacé”
Certified true
translation
Brian McCordick,
Translator
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