Docket: IMM-5055-16
Citation:
2017 FC 690
Ottawa, Ontario, July 17, 2017
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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YANG WANG
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Applicant
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review challenging
a decision of the Immigration Appeal Division [IAD] dated November 2, 2016,
compelling the Applicant, Mr. Yang Wang, to testify at a hearing before the
IAD.
[2]
For the reasons that follow, the application for
judicial review is dismissed as it is premature.
I.
Background
[3]
The Applicant is a citizen of China. He came to
Canada as a student in 1998 and became a permanent resident in 2006.
[4]
In August 2014, the Canada Border Services
Agency issued a report under subsection 44(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] against the Applicant on the basis
that there were reasonable grounds to believe that he is inadmissible to Canada
pursuant to paragraphs 34(1)(a) and 34(1)(f) of the IRPA. The
section 44 report alleged that the Applicant had worked for specified foreign intelligence
and security agencies while residing in Canada.
[5]
The section 44 report was referred to the
Immigration Division [ID]. After considering the evidence submitted, the ID concluded
on August 24, 2015 that the Applicant was not inadmissible to Canada under
paragraphs 34(1)(a) and 34(1)(f) of the IRPA.
[6]
The Respondent appealed the ID’s decision to the
IAD. At the hearing, the Respondent sought to call the Applicant as a witness.
As the Applicant declined to testify, the matter was adjourned so that the
parties could provide submissions on an application for a summons. The
application for a summons was granted by the IAD in November 2016 and the
Applicant was ordered to appear and testify at the appeal hearing before the
IAD.
[7]
The IAD noted that it derives its authority to
issue a summons from subsection 174(2) of the IRPA and from section 38 of the Immigration
Appeal Division Rules, SOR/2002-230 [IAD Rules]. Pursuant to subsection
174(2) of the IRPA, the IAD has all the powers of a superior court of record
necessary for the exercise of its jurisdiction, including the swearing and examination
of witnesses, the production and inspection of documents and the enforcement of
its orders. Section 38 of the IAD Rules sets out the process for requesting a
summons and a non-exhaustive list of factors to be considered by the IAD in determining
whether to issue a summons.
[8]
The IAD then found that the Applicant’s
testimony was necessary to ensure a full and fair hearing as the credibility of
the Applicant was at the heart of the appeal. Relying on the decision of this
Court in Castellon Viera v Canada (Citizenship and Immigration), 2012 FC
1086 [Castellon Viera] at paragraph 11, the IAD stated that it had a
duty to independently determine whether the Applicant was in fact inadmissible
and not simply whether the ID made the right decision based on the evidence
before it. Since the decision of the ID was based on evidence which included the
Applicant’s testimony, the IAD considered that an oral hearing was necessary so
it could render its decision independently of the ID (Castellon Viera at
paras 11-12).
[9]
After considering the case law finding that the
ID has jurisdiction to compel testimony, the more expansive legislated
authority of the IAD pursuant to subsection 174(2) of the IRPA, the objectives of
the IRPA which include the protection of the safety and security of Canada, the
offence created under section 127(c) of the IRPA for refusing to answer
questions at proceedings held under the IRPA, as well as the penalty for doing
so under section 128 of the IRPA and the decision of this Court in Jaballah
(Re), 2010 FC 224, the IAD concluded that it possessed the authority to
compel testimony. The IAD also found that a finding of inadmissibility did not engage
the Applicant’s rights under sections 7 and 13 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]
or the right against self-incrimination under section 5 of the Canada
Evidence Act, RSC, 1985, c C-5.
[10]
The Applicant sought and was granted leave to
bring an application for judicial review of the IAD’s interlocutory order
compelling him to testify. The Applicant contends that compelling him to
testify engages his right to liberty under section 7 of the Charter.
Where this testimony is used to impeach his credibility and to impose sanctions
against him, the requirements of fundamental justice are not met and section 7
of the Charter is breached.
II.
Analysis
[11]
In my view, the determinative issue in this
matter is the prematurity of the application for judicial review as the decision
of the IAD is interlocutory.
[12]
It is trite law that absent exceptional circumstances,
the courts will not interfere with interlocutory decisions until the ongoing
administrative processes have been completed and until all other available
effective remedies have been exhausted. The underlying purpose of the rule is
to prevent fragmentation of the administrative process, to reduce the large
costs and delays associated with premature court challenges, particularly where
the party may ultimately be successful at the conclusion of the administrative
process (Canada (Border Services Agency) v C.B. Powell Limited, 2010 FCA
61 at paras 4, 28, 30-32 [C.B. Powell]).
[13]
The restrictive approach in interpreting the principle
of judicial non-interference with ongoing administrative processes has been
endorsed by the Supreme Court of Canada in Halifax (Regional Municipality) v
Nova Scotia (Human Rights Commission), 2012 SCC 10 at paragraphs 35 to 38.
[14]
The Applicant argues that while the Federal
Court of Appeal did not identify what it considered to be “exceptional circumstances”, the circumstances of this
case are distinguishable from those in C.B. Powell. In this case there
is no available appeal process for the Applicant to challenge the decision of
the IAD to issue a summons. In that sense, the IAD’s decision is a final
decision on a substantive right, the right to not be compelled to testify.
[15]
The Applicant argues that if he is compelled to
testify for the purpose of testing his credibility before the IAD, the damage
will already be done and cannot afterwards be corrected, as he will already
have testified. If his credibility is impugned through testimony, the IAD may
decide that he is not credible and this finding may not be subject to
correction on judicial review as there is no guarantee that he will be
successful in obtaining leave. Moreover, in the event he is successful on
judicial review, the transcripts of his testimony may still be used against him
in other proceedings.
[16]
While I agree with the Applicant that the
Federal Court of Appeal did not identify what would consist of “exceptional circumstances”, it did adopt a very restrictive
approach to the exception against interlocutory judicial reviews. The Federal
Court of Appeal noted that very few circumstances qualify as exceptional and
that the threshold for exceptionality is high. It found that concerns about
procedural fairness or bias, the presence of an important legal or
constitutional issue, or the fact that all parties have consented to early
recourse to the courts are not exceptional circumstances allowing the parties
to bypass an administrative process and to seek judicial review of an
interlocutory decision, as long as that process allows the issues to be raised
and an effective remedy to be granted (C.B. Powell at para 33).
[17]
The Federal Court of Appeal and this Court have
also held that rulings made on the admissibility or compellability of evidence
should not be subject to judicial review applications until the administrative
proceedings are completed (Bell Canada v Canadian Telephone Employees
Association, 2001 FCA 139 at para 5; Zundel v Canada (Human Rights
Commission), [2000] FCJ No 678 (QL) at para 15; Szczecka v Canada
(Minister of Employment and Immigration), [1993] FCJ No 934 (QL) at para 4;
Temahagali v Canada (Minister of Citizenship and Immigration), [2000]
FCJ No 2041 (QL)).
[18]
The Applicant relies on the decision of this
Court in Canada (Minister of Public Safety and Emergency Preparedness) v
Kahlon, 2005 FC 1000 [Kahlon] to support his argument that if he is
compelled to testify, the damage will already be done by the time he can avail
himself of judicial review. In Kahlon, Madam Justice Danièle Tremblay-Lamer
held that the damage to the privacy of the witness and her desire to keep her
immigration information private constituted special circumstances which warranted
the Court’s intervention on the interlocutory decision to issue a witness a
summons.
[19]
In my view, this decision is distinguishable from
the case at hand as the scope of permissible “exceptional
circumstances” has been extremely narrowed since the decision of the Federal
Court of Appeal in C.B. Powell. Also, the compelled witness in Kahlon
was not a party to the proceedings and had no other means of seeking redress, unlike
the Applicant in this case who can seek judicial review if he is unsuccessful
and declared inadmissible by the IAD. More importantly, the Applicant has
already given testimony in this case. He testified over a period of two (2)
days before the ID during which he communicated extensive details of his life
and spoke to his alleged involvement with the foreign intelligence and security
agencies. This is not a case in which once the evidence is disclosed, it cannot
be taken back. The Applicant has failed to persuade me that any potential
damage that could result from him testifying before the IAD would be such that
it would be so fundamentally unfair to the Applicant not to decide the issue of
his compellability at this stage of the IAD’s proceedings.
[20]
The Applicant further suggested that a
distinction be drawn between testimony adduced before the ID and the IAD. Hearings
before the IAD are public and as such, there would be no effective remedy for
the Applicant as a judicial review would not be able to prevent the transcripts
of his proceedings being used against him in other proceedings. I do not find
this argument persuasive. Section 49 of the IAD Rules provides that a party may
request that a proceeding be held in private or ask that other measures be
taken to ensure the confidentiality of the proceedings. These measures could
include having the original transcripts of his testimony or the entire record
sealed and could go as far as including any future proceedings before the IAD
in the event the Applicant was successful on a future application for judicial
review on the issue of compellability.
[21]
I agree that there may be situations where
compelling someone to testify may constitute “exceptional
circumstances” which would require an immediate review of the decision
despite its interlocutory nature. However, the circumstances of this case do
not warrant an exception to the general rule. Accordingly, I find this
application for judicial review to be premature.
[22]
This application for judicial review is
dismissed without prejudice to the Applicant raising the same arguments upon
any future judicial review after the IAD renders a final determination.
[23]
The Applicant proposed the following questions
for certification under section 74(d) of the IRPA:
Does the issuance of a summons
compelling a Respondent in a Minister's appeal to the Immigration Appeal
Division (IAD) engage the liberty interests in section 7 of the Charter of
Rights and Freedoms?
If yes, does compelling a
Respondent to testify in a Minister's appeal to the IAD breach principles of
fundamental justice in the Charter of Rights and Freedoms where the purpose of
compelling him to testify is to test and possibly impugn his credibility?
[24]
Given my conclusion that the application for
judicial review is premature, I will not certify the proposed questions as they
have not been answered by this Court (Mudrak v Canada (Citizenship and
Immigration), 2016 FCA 178 at paras 15-19; Zhang v Canada (Citizenship
and Immigration), 2013 FCA 168 at para 9; Canada (Minister of Citizenship
and Immigration) v Zazai, 2004 FCA 89 at para 12).
[25]
Lastly, the proper Respondent in these proceedings
is the Minister of Public Safety and Emergency Preparedness and thus, the style
of cause shall be amended accordingly.
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