Oukacine v. Canada (Citizenship and Immigration), 2007 FCA 85

Date: 20070301

Docket: A-582-06

Citation: 2007 FCA 85

CORAM:       DESJARDINS J.A.

                        DÉCARY J.A.

                        NOËL J.A.

BETWEEN:

HACÈNE OUKACINE

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA

Respondent

Motion decided without appearance of the parties.

Judgment delivered at Ottawa, Ontario, on March 1, 2007.

REASONS FOR JUDGMENT BY:                                                       DESJARDINS J.A.

CONCURRED IN BY:                                                                          DÉCARY J.A.

                                                                                                              NOËL J.A.

Date: 20070301

Docket: A-582-06

Citation: 2007 FCA 85

CORAM:       DESJARDINS J.A.

                        DÉCARY J.A.

                        NOËL J.A.

BETWEEN:

HACÈNE OUKACINE

Appellant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION OF CANADA

Respondent

REASONS FOR JUDGMENT

DESJARDINS J.A.:

[1]               The appellant is appealing a decision of the Federal Court (Mr. Justice Shore) dismissing the appellant’s application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board).

[2]               The trial judge did not certify any question, and the appellant did not ask him to.

[3]               The appellant argues that our Court has jurisdiction to hear the appeal because of the exceptional circumstances in this case. He submits that the Board violated his fundamental language rights by conducting the hearing in the English language even though the appellant had at the outset indicated a preference for proceeding in French. He argues that even if he subsequently agreed to a hearing in English,  at no time and under no circumstances can an individual waive his constitutional rights, and the Federal Court of Appeal, like all other courts in this country, must ensure that these rights are diligently observed. 

[4]               The trial judge noted that the Board, at the start of the hearing, asked the appellant directly if he could participate in English without an interpreter, and the appellant responded affirmatively. The trial judge stated that the hearing transcript shows that Mr. Oukacine understood the questions he was asked and that he answered them in intelligible English. The judge concluded that the appellant could not, after the fact, complain of improper proceedings. 

[5]               The issue the appellant raises has already been determined by the trial judge. This is not an exceptional case of want of jurisdiction.

[6]               This Court has no jurisdiction to hear this appeal without a certified question.

[7]               I would dismiss the appeal with costs. In my opinion, there is no reason to order the appellant’s solicitor to personally pay the costs and apply Rule 404(2) as the respondent requests.

“Alice Desjardins”

“I concur.

     Robert Décary J.A.” 

“I concur.

     Marc Noël J.A.”

Certified true translation

Gwendolyn May, LLB

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET:                                                                              A-582-06

STYLE OF CAUSE:                                                              Hacène Oukacine v. The Minister of Citizenship and Immigration of Canada

WRITTEN MOTION DECIDED WITHOUT APPEARANCE OF THE PARTIES

REASONS FOR JUDGMENT  BY:                                    Desjardins J.A.

CONCURRED IN BY:                                                         Décary J.A.

                                                                                                Noël J.A.

DATED:                                                                                 March 1, 2007

WRITTEN SUBMISSIONS:

SOLICITORS OF RECORD: