Date: 20090310
Docket: A-387-08
Citation: 2009 FCA
73
CORAM: LÉTOURNEAU J.A.
NADON J.A.
TRUDEL J.A.
BETWEEN:
INGEBORG ANNA RICHTER
Appellant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondents
Heard at Toronto, Ontario,
on March
10, 2009.
Judgment
delivered from the Bench at Toronto, Ontario, on
March
10, 2009.
REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL
J.A.
Date: 20090310
Docket: A-387-08
Citation: 2009 FCA 73
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
TRUDEL
J.A.
BETWEEN:
INGEBORG ANNA
RICHTER
Appellant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY
PREPAREDNESS
Respondents
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario,
on March 10, 2009)
TRUDEL J.A.
[1]
This
appeal arises from a decision by Mr. Justice Mosley (the Applications Judge),
2008 FC 806, dated June 26, 2008, who dismissed two applications for judicial
review. Those applications related to the decision of an Enforcement Officer
(the officer) of the Canada Services Border Agency (CBSA) to prepare an
inadmissibility report on the grounds of serious criminality pursuant to
subsection 44(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act)
(in file IMM-3154-07), and to the decision of a Minister’s delegate (the
delegate) to refer this report to the Immigration Division on June 18, 2007 for
an admissibility hearing pursuant to subsection 44(2) of the Act (in file IMM-3156-07).
[2]
The
appellant proposed four questions for certification of which only one, somewhat
modified for precision, was found to be a serious question of general
importance, which would be dispositive of the appeal (ibid. at
paragraphs 28 and 29). It reads:
Is
there a greater duty of fairness required of immigration officers preparing a
subsection 44(1) report and the Minister in referring the report when dealing
with persons in custody?
[3]
In his
memorandum, counsel for the respondents sought leave to amend the style of
cause in order to remove the Minister of Citizenship and Immigration as a
respondent, leaving the Minister of Public Safety and Emergency Preparedness as
the sole respondent in this appeal. The amendment will be granted as decisions
involving the reporting and referral of reports made under section 44 of the
Act come under his authority (Public Service Rearrangement and Transfer of
Duties Act, R.S.C. 1985, c. P-34; Orders in Council P.C. 2003-2061,
2003-2063 and 2005-0482).
[4]
The facts
leading to this appeal were aptly summarized by the Applications Judge at
paragraphs 2 to 7 of his reasons and need not be repeated.
THE FEDERAL COURT DECISION
[5]
The
appellant's main grievances about the impugned judgment are premised upon her
argument that she was denied procedural fairness throughout the immigration
proceedings.
[6]
The
Applications Judge was satisfied, given the relaxed duty of fairness for
section 44 proceedings (Hernandez v. Canada (Minister of Citizenship and
Immigration), 2005 FC 429, [2005] F.C.J. No. 533), that the appellant was
informed of her right and provided with every opportunity to make submissions
but failed to do so adding that “the officer and the [delegate] cannot be
faulted for Ms. Richter's failure to take advantage of the procedure outlined
to her” (Reasons, at paragraph 18). He also dismissed Ms. Richter’s submission
that she was entitled to a greater duty of fairness due to her incarceration.
[7]
Finally,
the Applications Judge found that the reasons of both the officer and the
delegate were adequate and allowed the appellant to understand the basis for
the decisions.
[8]
In our
view, the Applications Judge made no reviewable error and as we agree with his
conclusions and substantially adopt his reasoning, we need not add to his
reasons.
THE CERTIFIED QUESTION
[9]
Since
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817, it has been clear that on an appeal this Court is not restricted to
answering the question certified by the Applications Judge. Conversely, the
Court is not obliged to answer the question certified when it turns out to be
inappropriate or not necessary for the disposition of the appeal.
[10]
We are of
the view that we need not answer the certified question to dispose of the
present appeal. In addition, the question is too vague and a proper answer to
it is, by necessity, fact-driven. The scope and content of that duty will vary
depending on the circumstances of each case.
CONCLUSION
[11]
Therefore,
this appeal will be dismissed without costs, the certified question will not be
answered, and the request to amend the style of cause will be allowed.
"Johanne Trudel"
FEDERAL
COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-387-08
(APPEAL
FROM A JUDGMENT OR ORDER OF THE HONOURABLE JUSTICE MOSLEY DATED JUNE 26, 2008,
TRIAL DIVISION, DOCKET NOS. IMM-3154-07 AND IMM-3156-07)
STYLE
OF CAUSE: INGEBORG ANNA RICHTER
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 10, 2009
REASONS FOR JUDGMENT OF THE
COURT BY: LÉTOURNEAU, NADON, TRUDEL JJ.A.
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
Timothy Wichert
|
FOR
THE APPELLANT
|
|
Gordon Lee
Ms.
Stewart-Guthrie
|
FOR
THE RESPONDENTS
|
SOLICITORS
OF RECORD:
|
Jackman & Associates
Toronto, Ontario
|
FOR THE APPELLANT
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENTS
|
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