Date: 20080630
Docket: IMM-5636-06
Citation: 2008 FC 820
Vancouver, British Columbia, June
30, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
JUNIOR CHRISTOPHER WEEKES
By his litigation guardian John Norquay
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Junior Christopher Weekes, represented by his litigation guardian Mr. John
Norquay, seeks judicial review of the decision of Martin Kosichek, Enforcement
Officer (the “Officer”), not to defer his removal from Canada. The
decision was made on October 18, 2006, relative to the removal of the Applicant
that was scheduled for October 26, 2006. By Order made on October 23, 2006, the
removal order was stayed, pending disposition of the application for leave and
if leave were granted, until the final disposition of the matter.
[2]
The
Applicant is a citizen of Guyana. Pursuant to the sponsorship of his
father, he became a permanent resident of Canada in 1995. A
deportation order was issued against the Applicant on October 23, 1998. He was
detained and later released on a bond. However, the Applicant breached the
reporting requirements and was detained again on October 5, 2000. He was
released from that detention in February 2001.
[3]
On
April 7, 2006, the Applicant was notified of his right to submit a Pre-Removal
Risk Assessment (“PRRA”). He did not do so.
[4]
The
Applicant was advised on September 8, 2006, that his removal was scheduled for
October 26, 2006. On October 12, 2006, he attended his pre-removal interview.
On October 16, 2006, Counsel for the Applicant requested deferral of his
removal. The basis for that request was to allow the Applicant to remain in Canada pending
disposition by the Immigration Appeal Division (the “IAD”) of a motion to
extend the time for appealing the deportation order against him. That motion
had been submitted to the IAD under cover of a letter dated October 16, 2006.
[5]
The
motion before the IAD was supported by the affidavit of Mr. Norquay, a barrister
and solicitor called to the bar of Ontario. By letter dated October 16, 2006, Counsel
for the Applicant requested the IAD to appoint Mr. Norquay as the designated
representative for the Applicant, pursuant to subsection 19(2) of the Immigration
Appeal Division Rules (SOR/2002-230) (the “IAD Rules”).
[6]
In
his affidavit, Mr. Norquay reviewed the relevant facts pertaining to the
Applicant’s history of criminal charges, as well as relevant facts respective
to his family relationships. The Applicant has no remaining family members
in Guyana and had not
been in contact with his father for several years.
[7]
Mr.
Norquay also referred to the Applicant’s history of mental health problems,
including an assessment by a Dr. Cooper, a psychiatrist, who had diagnosed
the Applicant as schizophrenic, in the 1990’s. A copy of the report
prepared by Dr. Cooper was attached as an exhibit to Mr. Norquay’s
affidavit. Mr. Norquay further deposed that he had met the Applicant on October
11, 2006, and at that time, he formed the impression that the Applicant did not
understand or appreciate the nature of the proceedings against him undertaken
under the relevant immigration legislation.
[8]
Mr.
Norquay described the Applicant’s criminal record as being “relatively minor”.
At paragraph 14 of his affidavit, he said the following:
From my review of his file, it appears
that Mr. Weekes has a relatively minor criminal record. On June 16, 1998, he
received a conditional discharge for failing to attend court and obstructing a
police officer. He spent 60 days in pre-sentence custody. On October 2, 1998,
he was convicted of failing to comply with probation for which he received time
served of 13 days, uttering a forged document and possession of property
obtained by crime over $5000, for which he received a 60 day concurrent
sentence. Mr. Weekes was also convicted of break and enter and theft on October
26, 1998, and received a one month sentence. Further charges in 2000 and 2001
were withdrawn by the Crown.
[9]
The
Applicant did not appeal the deportation order that was issued on October 23,
1998, within the time limited for filing an appeal. However, on November 3,
1999, an application was made by Mr. Chet Sharma, an immigration lawyer acting
on behalf of the Applicant, for an extension of time to appeal the deportation
order. That application was sent by facsimile to the IAD on November 3, 1999. A
copy of the application was attached to Mr. Norquay’s affidavit; that exhibit
included a copy of the facsimile transmission sheet that indicated that the message
had been successfully sent to the IAD. It appears from the Tribunal Record that
Mr. Sharma never received a response from the IAD. Further, it appears that no
decision was made by the IAD with respect to the November 1999 application for
an extension of time to appeal the deportation order.
[10]
On
April 3, 2007, the IAD denied the Applicant’s motion for an extension of time
to file a Notice of Appeal from the deportation order. An application for leave
and judicial review was filed in respect of that decision. In a decision dated
March 4, 2008 and cited as 2008 FC 293, Justice O’Keefe allowed the application
for judicial review and quashed the decision of the IAD that denied the
Applicant’s request for an extension of time within which to file his Notice of
Appeal.
[11]
In
deciding not to defer removal of the Applicant, the Officer referenced a number
of factors. He noted that there was no statutory bar to removal, the number of
attempts to remove the Applicant since 1998, the difficulties associated with
removals to Guyana, including
the high detention costs for Guyanese Nationals awaiting verification by the
Guyanese government.
[12]
The
Officer also recorded that no designated representative had been appointed for
the Applicant by the Immigration and Refugee Board, pursuant to subsection
167(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), although he had appeared before that
body on several occasions. The Officer interpreted the absence of a designated
representative as meaning that the Applicant was not suffering from a mental
illness or was unable to appreciate the nature of proceedings undertaken under
the Act.
[13]
The Officer also purported to make his own
assessment of the Applicant’s mental health on the basis of a conversation with
the Applicant when he was informed about his pending removal. The Officer mentioned,
as well, a report prepared by a Dr. Jerry Cooper on December 13, 1999, in which
the Applicant was described in terms of being “of low to average intelligence”
without suicidal or homicidal ideation. The Officer said that he considered
that the Applicant was described as “having schizophrenia”.
[14]
The Officer also commented on the timing of the
request for the deferral of removal, noting that his current counsel was aware
of the pending removal of the Applicant as early as September 8, 2006.
[15]
In his request for deferral, Counsel for the
Applicant had pointed out that an appeal of the deportation order was filed by
former counsel on November 3, 1999, but no response was provided by the Board
in that regard. The Officer recorded the following in his notes to file:
… In my opinion,
I believe it is reasonable that if the application was filed properly that the
IRB would have responded in good time. Secondly, I believe it reasonable to
expect counsel to follow-up with the IRB if no response is received in good
time. I believe that it is not reasonable to request deferral, based on a
matter that due to a lack of diligence was not dealt with seven years ago.
[16]
Finally,
the Officer said that since the Applicant has no means to support himself
financially, has been in receipt of social assistance and had no fixed
addressed but was residing at the Salvation Army, has previously breached the
condition of his release and had been charged with possession of cocaine, which
charge was subsequently withdrawn, he, the Applicant, would likely return to
“street life” if released from detention.
[17]
In
his written representations, the Applicant argued that the Officer made a
patently unreasonable finding respecting his mental health, in light of the
evidence before him. He submitted that the Officer misinterpreted the timing of
his deferral request, in particular the difficulty in obtaining information
about his history, since his mental health problems prevented him from
instructing counsel about his actual background and circumstances. Finally, the
Applicant argued that the Officer erred by basing his decision, not to defer
removal, on irrelevant considerations.
[18]
For
his part, the Minister of Citizenship and Immigration (the “Respondent”)
focused his written submissions on two issues: first, he argued that the
application for judicial review is moot since the factual circumstances
relating to the decision under review have changed. In this regard, the
Respondent notes that the basis for the Applicant’s request for removal was the
disposition by the IAD of his request for an extension of time to appeal from
the deportation order against him.
[19]
The
Respondent says that the negative decision by the IAD in this regard made on
April 3, 2007, renders the within application moot, on the basis of the
decision in Borowski v. Canada (Attorney General), [1989] 1
S.C.R. 342.
[20]
Second,
the Respondent submits that the Officer, having a limited discretion to defer
removal, committed no reviewable error in making his decision.
[21]
At
the hearing of this application for judicial review, Counsel for the Applicant
conceded that the application for judicial review is moot, since the basis for
the request to the Officer for a deferral was a postponement of his removal until
the IAD made a decision upon his request for an extension of time to appeal
from the deportation order that was made in 1998.
[22]
The
IAD made its decision in April 2007 and consequently, the facts and circumstances
in which the original decision was made no longer exist. Nonetheless, the
Applicant asked the Court to exercise its discretion to hear the matter on its
merits on the grounds that removals officers may benefit from guidance in the
manner of exercising their limited discretion to defer removal pursuant to the
Act.
[23]
As
noted by Justice Gibson in Higgins v. Canada, (Minister
of Public Safety and Emergency Preparedness, [2007] F.C.J. No. 516,
the seminal decision on the issue of mootness is Borowski. At page
353, Justice Sopinka, writing for the Court, said the following:
The doctrine of mootness is part of a
general policy that a court may decline to decide a case which raises merely a
hypothetical or abstract question. An appeal is moot when a decision will not
have the effect of resolving some controversy affecting or potentially
affecting the rights of the parties. …
The approach with respect to mootness
involves a two-step analysis. It is first necessary to determine whether the
requisite tangible and concrete dispute has disappeared rendering the issues
academic. If so, it is then necessary to decide if the court should exercise
its discretion to hear the case. (In the interest of clarity, a case is moot if
it does not present a concrete controversy even though a court may elect to
address the moot issue.)
[24]
At
pages 358 through 362, Justice Sopinka addressed the principles that govern the
exercise of discretion to hear a matter, notwithstanding its mootness. Justice
Sopinka said the following:
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 …
It is, however, a discretion to be
judicially exercised with due regard for established principles.
…
The first rationale for the policy and
practice referred to above is that a court’s competence to resolve legal
disputes is rooted in the adversary system…
…
The second broad rationale on which the
mootness doctrine is based is the concern for judicial economy…
…
The third underlying rationale of the
mootness doctrine is the need for the 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. Pronouncing
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 …
[25]
The
first element to be addressed in deciding whether a proceeding is moot is the
determination whether a “live controversy” exists between the parties. The
second step is a decision by the Court whether or not to exercise its
discretion to determine a matter, notwithstanding the mootness of the issue.
[26]
In
the present case, I am satisfied that this proceeding is moot, but not for the
reasons advanced by each party.
[27]
The
subject of this proceeding is the refusal of the Officer to defer the removal
of the Applicant. That removal was scheduled for October 26, 2006 but was
stayed by an Order dated October 23, 2006. The specific subject of the
controversy between the parties is no longer alive. The basis for the
deferral request, that is to allow the Applicant to remain in Canada pending a
decision of the IAD upon his application for an extension of time to appeal,
was not the subject of the application for judicial review. The reason for the
deferral request does not give rise to a “live controversy” or otherwise
between the parties.
[28]
In
my opinion, the point of departure in identifying the “controversy” between the
parties is the originating document in a proceeding, in this case, the Notice
of Application for judicial review. That document clearly describes the subject
of the “live controversy” between the parties proceeding as follows:
The applicant seeks leave of the Court to
commence an application for judicial review of:
The decision of Enforcement Officer, M.
Kosichek, of the Canada Border Services Agency, dated October 18, 2006, wherein
he decided not to defer the removal of the Applicant.
[29]
In
Baron v. Canada (Minister of Public Safety and Emergency Preparedness), 2008
FC 341, [2008] F.C.J. No. 434, Justice Dawson decided that an application for
judicial review of the refusal of a removals officer to grant a stay of removal
was moot due to the absence of a live controversy between the parties, once the
stay order was granted. Justice Mactavish reached the same conclusion in the
case of Palka v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 342, [2008] F.C.J. No. 435.
[30]
In
each case, Justice Dawson and Justice Mactavish proceeded to consider whether
discretion should be exercised for the purpose of disposing of the respective
applications for judicial review dealt with upon the merits, regardless of the
mootness of the issues raised. In each case, they declined to exercise their
discretion.
[31]
Both
the Applicant and the Respondent addressed the decisions in Baron and Palka
in a continuation of the hearing of the judicial review application held on
June 17. The Applicant repeated his request that the Court exercise its
discretion to entertain the merits of his application principally on the
grounds that there is little guidance available to removals officers relating
to the exercise of the limited discretion conferred by subsection 43(2) of the
Act. He referred, as well, to the comments made by Justice Dawson in Baron
concerning the lack of written guidelines in that respect.
[32]
The
Respondent took the position that there was nothing about the present case to
distinguish it from the situations prevailing in Baron and Palka
when Justices Dawson and Mactavish, respectively, declined to exercise their
discretion to adjudicate the cases before them on their merits. Further, the
Respondent submitted that a decision of this Court in the present case would be
of limited utility. The Respondent also made the observation that the fact that
this application concerns a vulnerable person will remain unchanged, regardless
of any decision by this Court to exercise its discretion to hear the matter.
[33]
As
discussed by Justice Sopinka in the Borowski decision, the Court’s
discretion to hear a moot proceeding is not open-ended. The exercise of that
discretion is to be informed by three principles.
[34]
The
first principle is the existence of an adversarial context. The second is a
“concern for judicial economy” that must be balanced against circumstances
where a case raises “… an issue of public importance of which a resolution is
in the public interest.”
[35]
Finally,
in choosing to exercise its discretion, the Court must “… demonstrate a measure
of awareness of its proper law making function. The Court must be sensitive to
its role as the adjudicative branch in the political framework.”
[36]
In
this case, the Applicant remains the subject of a deportation Order. He remains
vulnerable to removal from Canada. In a broad sense, he remains in an
adversarial relationship with the Respondent who controls the entry and
continuing presence of immigrants in Canada. In that regard, I
refer to the decision in Chiarelli v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 711.
[37]
With
respect to the second principle, that is concern for judicial economy, I agree
with the recent argument made by the Applicant, that the Court has already
“expended” its resources, having heard this application on the merits. The
factor of judicial economy is now neutral.
[38]
Finally,
there is the question of public interest. The Applicant submits that it is in
the public interest that the Court provide guidance to removals officers when
deferral requests are made. He notes that Justice Dawson in Baron
commented on the lack of written guidelines in that regard.
[39]
There
is another element that, in my opinion, weighs in favour of the exercise of
discretion to dispose of this application on the merits, that is, the relative
lack of expertise that can be expected of a removals officer. In the hierarchy
of those who make decisions under the Act, including the Refugee Protection
Division and the Immigration Appeal Division, removals officers are not
required to demonstrate any particular expertise yet their decision can have
far-reaching consequences for an applicant.
[40]
The
Act provides for access to judicial review, upon the granting of leave; see
subsection 72(1). The powers of the Court upon an application for judicial
review are set out in sections 18 and 18.1 of the Federal Courts Act,
R.S.C. 1985, c.F-7. In my opinion, it would be anomalous, as well as unfair, to
shield a decision of a removals officer from review if it is erroneous and a
full adjudication may provide future guidance.
[41]
For
these reasons and having regard to the principles discussed in Borowski,
I chose to exercise my discretion to review the subject matter of this
application, that is, the negative decision of the Officer.
[42]
Section
48 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), describes the duty
imposed upon removals officers relative to the removal of persons from Canada:
|
Enforceable removal order
48. (1) A removal order is enforceable if it has come into
force and is not stayed.
Effect
(2) If a removal order is enforceable, the foreign national against whom
it was made must leave Canada immediately and it must be enforced as soon as is
reasonably practicable.
|
Mesure de renvoi
48. (1) La
mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne
fait pas l’objet d’un sursis.
Conséquence
(2) L’étranger visé par la mesure de renvoi exécutoire
doit immédiatement quitter le territoire du Canada, la mesure devant être
appliquée dès que les circonstances le permettent.
|
[43]
Typically,
a discretionary decision involves an assessment of the facts within the
relevant legal context. It is the hallmark of a discretionary decision that the
decision-maker, in this case, the removals officer, can either make within a
positive or negative decision, as informed by the applicable legislation. Subsection
48(2), by itself, provides no guidance.
[44]
A
developed body of jurisprudence makes it clear that a removals officer has but
a limited discretion to defer execution of a removal order. I refer to the
decisions in Wang v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 148, [2001] 3 F.C. 682; Bastien
v. Canada (Minister of Citizenship and Immigration), 2006 FC 711, 306
F.T.R. 33; Hailu v. Canada (Solicitor General) (2005), 2005
FC 229, 27 Admin. L.R. (4th) 222; J.B. v. Canada (Solicitor
General),
2004 FC 1720, [2004] F.C.J. No. 2094 and Boniowski v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1161, 44 Imm. L.R. (3d) 31 (F.C.).
[45]
In
the course of supplementary submissions, Counsel for the Respondent submitted
that the recent decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9 did not so radically change the “landscape or administrative law “as
to oust the continuing application of the decision in Maple Lodge Farms Ltd.
v. Government of Canada, [1982] 2 S.C.R. 2. At pages 7 and 8 of that
decision, Mr. Justice McIntyre said the following:
In construing statutes such as those
under consideration in this appeal, which provide for far-reaching and
frequently complicated administrative schemes, the judicial approach should be
to endeavour within the scope of the legislation to give effect to its
provisions so that the administrative agencies created may function
effectively, as the legislation intended. In my view, in dealing with
legislation of this nature, the courts should, wherever possible, avoid a
narrow, technical construction, and endeavour to make effective the legislative
intent as applied to the administrative scheme involved. It is, as well, a
clearly-established rule that the courts should not interfere with the exercise
of a discretion by a statutory authority merely because the court might have
exercised the discretion in a different manner had it been charged with that
responsibility. Where the statutory discretion has been exercised in good faith
and, where required, in accordance with the principles of natural justice, and
where reliance has not been placed upon considerations irrelevant or extraneous
to the statutory purpose, the courts should not interfere.
…
[46]
In
my opinion, the Officer erred in refusing the Applicant’s request for a
deferral of his removal because he ignored relevant evidence, specifically the
evidence that appears on the record about the Applicant’s mental health. In
this regard, I refer to the transcripts of proceedings before the Immigration
Refugee Board Adjudication Division on July 12, 1999. That transcript clearly
shows that the president member was concerned about the Applicant’s mental
health and his ability to understand the nature of the proceeding in which he
was involved.
[47]
The
Officer also ignored the medical report dated October 13, 1999, from Dr. Jerry
Cooper, a psychiatrist at the Humber River Regional Hospital. In
this report, Dr. Cooper expressed the opinion that the Applicant may be subject
to a “schizophrenic process.” He expressed the opinion that the Applicant would
not be able to understand the need to appeal the deportation order.
[48]
This
medical report, written soon after the detention review that was held on July
12, 1999, where the presiding member expressed similar concerns about the
Applicant’s ability to understand what was happening, was relevant evidence. In
my view, the Officer’s notes do not show that he took it into account. On the
contrary, these notes suggest that he ignored this relevant evidence.
[49]
According
to his notes to file, the Officer took into account the “facts” of the
Applicant’s impecuniosity, lack of a permanent address and prior breaks of
condition of his release when refusing the request to defer removal. In my
opinion, these factors are irrelevant and extraneous to the issue of whether
the removal of the Applicant should be deferred.
[50]
At
the time the Applicant sought to defer his removal, the principal ground for that
request was an outstanding request to the IAD to extend the time to appeal for
the deportation order that had been issued in 1998. The filing of the notice
of appeal raised issues of procedural fairness. The Officer’s notes
recorded his personal view that the failure to file the notice of appeal in
1998 was due to a lack of diligence on the part of the Applicant. This view is contradicted
by the evidence that was before the Officer: see the Tribunal Record at page
57. In my opinion, the Officer either ignored or misunderstood relevant
evidence.
[51]
These
examples demonstrate that the Officer’s decision, refusing to defer removal of
the Applicant, fails the test set out in Maple Lodge Farms where the
Supreme Court of Canada said that a discretionary decision of an administrative
decision-maker was entitled to deference unless it was based upon consideration
of irrelevant and extraneous matters and ignored relevant evidence.
[52]
As
a result, this application for judicial review is allowed and the decision of
the Officer is quashed.
[53]
At
the initial hearing of this application, Counsel sought certification of the
same question that had been certified by Justice Gibson in Higgins. On
June 17, upon a reconvening of the hearing, neither Counsel requested
certification of a question. Nonetheless, in my opinion and having regard to
subsection 74(d) of the Act, I am satisfied that a question should be certified
and state the question, as certified in Higgins, as follows:
Where an applicant has filed an
application for leave and judicial review of a decision not to defer the
implementation of a Removal Order outstanding against him or her, does the fact
that the applicant’s removal is subsequently halted by operation of a stay
Order issued by this Court render the underlying judicial review application
moot?
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this
application for judicial review is allowed and the decision of the Officer is
quashed. The following question is certified:
Where an applicant has filed an
application for leave and judicial review of a decision not to defer the
implementation of a Removal Order outstanding against him or her, does the fact
that the applicant’s removal is subsequently halted by operation of a stay
Order issued by this Court render the underlying judicial review application
moot?
“E.
Heneghan”
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