Docket: A24215
Citation: 2016 FCA 48
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CORAM:
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NOËL C.J.
SCOTT J.A.
DE MONTIGNY J.A.
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BETWEEN:
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MICHELE TORRE
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Appellant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT OF
THE COURT BY
(Judgment delivered at Montréal, Quebec,
on February 9, 2016.)
DE MONTIGNY J.A.
[1]
This is an appeal from the decision rendered by
Madam Justice TremblayLamer of the Federal Court (2015 FC 591)
dismissing Michele Torre’s application for judicial review of a finding of
inadmissibility for serious criminality and organized criminality determined by
the Immigration Division of the Immigration and Refugee Board of Canada.
[2]
In her decision, the judge certified the
following question:
Does the Immigration Division of the
Immigration and Refugee Board of Canada have jurisdiction to grant a stay of
proceedings under subsection 24(1) of the Canadian Charter of Rights and
Freedoms (the Charter) for an investigation following the referral of a
report prepared under subsection 44(1) of the Immigration and Refugee
Protection Act (IRPA)?
[3]
Under subsection 74(d) of IRPA, only a serious
question of general importance may be certified and thus open the possibility
of an appeal from a judgment following an application for judicial review. This
requirement has been interpreted by the Court several times, and the law is now
well settled: to be certified, a question must be dispositive of the appeal and
transcend the interests of the immediate parties to the litigation due to its
broad significance: Canada (Minister of Citizenship and Immigration) v.
Liyanagamage [1994], FCJ No. 1637 at paragraph 4, 176 N.R. 4; Zhang
v. Canada (Minister of Citizenship and Immigration), 2013 FCA 168 at
paragraph 9, [2013] FCJ No. 764. In other words, a certified question is not to
be a reference of a question to this Court, and a certified question must have
been raised and decided by the court below and have an impact on the result of
the litigation: Zazai v. Canada (Minister of Citizenship and Immigration),
2004 FCA 89 at paragraphs 11–12, [2004] FCJ No. 368; Lai v. Canada
(Minister of Public Safety and Emergency Preparedness), 2015 FCA 21 at
paragraph 4, [2015] FCJ No. 125.
[4]
In this case, the certified question does not
meet those requirements. On the one hand, the appellant did not even attempt to
demonstrate how his right to life, liberty and security of the person was
violated by the investigation before the Immigration Division. A finding of
inadmissibility alone does not suffice to infringe upon the rights granted by
section 7. Only when a deportation order is implemented is it appropriate to
determine whether an individual’s right to liberty, security or even life will
be put at risk by deporting him to his country of origin. When there is no
infringement of any of the rights guaranteed by the Charter, the question
whether relief may be granted under subsection 24(1) of this Charter is premature.
[5]
On the other hand, the appellant cannot invoke
any prejudice resulting from the delay between his convictions and the referral
of the investigation reports. As the Supreme Court stated in Blencoe v.
British Columbia (Human Rights Commission), 2000 SCC 44 at paragraph 133,
[2000] 2 S.C.R. 307, delay in itself is not an abuse of process or a violation of
the duty to act fairly. The appellant had to do more than make vague
allegations that the delay endangered his physical and psychological integrity
and drained his ability to submit a full and complete defence, without
providing any evidence to support them. In fact, the appellant never tried to show
how he was prejudiced by the passage of time before either the Immigration
Division or the Federal Court. What is more, he did not raise the issue of
delay in his interview before the preparation of the reports described in
section 44 of IRPA, nor did he seek judicial review of the decision to refer
him to the Immigration Division for an investigation. Under these
circumstances, the appellant cannot show that he suffered prejudice or that the
fairness of procedures was compromised.
[6]
Because the certified question should not have
been certified, and since the existence of a certified question is a
prerequisite for the right to appeal, the appeal is dismissed.
“Yves de Montigny”
Certified true
translation
François Brunet,
Revisor
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