Docket: T-479-18
Citation: 2022 FC 37
Ottawa, Ontario, January 13, 2022
PRESENT: The Honourable Mr. Justice Fothergill
| BETWEEN:
|
| AYAN ABDIRAHMAN JAMA
|
| Applicant
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Ayan Abdirahman Jama seeks judicial review of a decision by a delegate of the Minister of Public Safety and Emergency Preparedness [Minister] to deny her a passport pursuant to s 10.1 of the Canadian Passport Order, SI/81-86 [CPO]. The Minister’s delegate also determined that Ms. Jama should be refused passport services for a period of four years commencing on December 31, 2015, the date on which she submitted her passport application. The decision of the Minister’s delegate was communicated to Ms. Jama by letter dated February 8, 2018.
[2]
Ms. Jama has been eligible to apply for a passport since December 31, 2019. The parties acknowledge that the application for judicial review has become moot. It has been moot for more than two years.
[3]
On October 25, 2021, the Court invited the parties to make submissions on whether the Court should exercise its discretion to decide Ms. Jama’s application for judicial review, notwithstanding that it has become moot. Colin Baxter, Amicus Curiae [Amicus], was also given an opportunity to address the issue. The Court heard from the parties and the Amicus by videoconference on December 7, 2021.
[4]
For the reasons that follow, none of the considerations identified by Ms. Jama and the Attorney General of Canada [AGC] warrant hearing the application for judicial review on its merits, or deciding the constitutional question in the absence of a live controversy. The application for judicial review is therefore dismissed.
II.
Background
[5]
Ms. Jama was born in Mogadishu, Somalia, in 1989. She is a Canadian citizen.
[6]
Ms. Jama applied for a Canadian passport in December 2015. The following month, she was informed that her application would undergo a secondary security screening review.
[7]
In May 2016, Ms. Jama commenced an action in which she sought a writ of mandamus to compel the Minister’s delegate to render a decision on her passport application. In September 2016, the Minister’s delegate informed Ms. Jama that a new review process had been implemented for passport applications that were subject to secondary screening. Ms. Jama agreed to participate in the new process and discontinued the action.
[8]
By letter dated February 1, 2017, Ms. Jama was given an unclassified summary of information supporting a possible denial of her passport application. The unclassified summary contained a number of allegations against Ms. Jama, including that she had associated with an entity listed pursuant to s 83.05(1) of the Criminal Code, RSC, 1985, c C-46, namely Al Shabaab [AS]; that she had left Canada in 2010 and lived in Somalia with her husband in an AS-controlled area in Mogadishu; that her husband was killed in a drone strike in February 2012; that her husband identified as a senior figure in AS, and had been stripped of his British citizenship by UK authorities on national security grounds; and that she had written a will to her husband in which she declared her intention to become a “Shaheed”
(martyr), although she stated that she did not intend to harm herself or others. The summary also alluded to additional classified information illustrating Ms. Jama’s support for AS and her desire to become a martyr that could not be disclosed on national security grounds.
[9]
Ms. Jama responded to the unclassified summary of information on March 4, 2017.
[10]
By letter dated June 1, 2017, the Minister’s delegate informed Ms. Jama that advice was being prepared for the Minister recommending that Ms. Jama’s passport application be denied. Ms. Jama was given a further opportunity to make submissions, which she did on June 29, 2017.
[11]
On January 29, 2018, Ms. Jama commenced an application for judicial review in which she again sought a writ of mandamus to compel the Minister’s delegate to render a decision on her passport application.
[12]
By letter dated February 8, 2018, the Minister’s delegate informed Ms. Jama that her application for a passport had been denied, and she would be refused passport services for a period of four years commencing on December 31, 2015.
III.
Procedural History
[13]
Ms. Jama commenced this application for judicial review on March 13, 2018. Because she was refused a passport on the grounds of national security and the prevention of terrorism, Ms. Jama’s application was to be determined in accordance with s 6(2) of the Prevention of Terrorist Travel Act, SC 2015, c 36 [PTTA].
[14]
On April 13, 2018, following a request by the parties, Prothonotary Kevin Aalto directed that the matter continue as a specially managed proceeding. On April 30, 2018, the Chief Justice assigned Justice Simon Noël as case management judge.
[15]
An unredacted certified tribunal record [CTR] was filed with the Court’s designated proceedings registry on May 25, 2018, identifying information the AGC considered to be potentially injurious to national security or capable of endangering the safety of any person if it were disclosed. Justice Noël appointed Mr. Baxter as Amicus to assist in the conduct of in camera, ex parte hearings pursuant to s 6(2) of the PTTA.
[16]
Justice René LeBlanc was assigned as the designated judge for this proceeding in July 2018. In camera, ex parte hearings were held on October 30 and 31, 2018, with counsel for the AGC and the Amicus in attendance. A public summary of the hearings was communicated to the parties, including Ms. Jama, on November 5, 2018.
[17]
In the public summary of the in camera, ex parte hearings, Justice LeBlanc identified three issues to be addressed by the parties:
(1) Would disclosure of the redacted information in the CTR injure national security or endanger the safety of any person? Can additional redactions, beyond those already proposed by the Attorney General, be lifted from the CTR? See s. 6(2)(b) of the PTTA.
(2) In discharging its judicial duty, is the Court required to perform a legal balancing test between reasonably informing the Applicant of the case to meet and the requirement to prevent disclosing information that would injure national security or endanger the safety of any person? If not, what is the appropriate legal test under the PTTA?
(3) To ensure that the Applicant is reasonably informed of the reasons for the Minister’s decisions, what summaries can be provided that would not injure national security or endanger the safety of any person? See s. 6(2)(c) of the PTTA.
[18]
A public hearing concerning the second issue was held on February 4, 2019 by videoconference. In camera, ex parte hearings regarding the first and third issues took place on February 7, 2019 at the Court’s secure facilities.
[19]
Justice LeBlanc issued a decision respecting the three identified issues on June 21, 2019 (Jama v Canada (Attorney General), 2019 FC 533 [Jama]).
[20]
On August 1, 2019, Ms. Jama amended her Notice of Application to include a challenge to the PTTA pursuant to the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]:
On June 21, 2019 in this proceeding, the Court rendered a procedural ruling setting out for the first time the judicial approach and limits to evidence disclosure pursuant to the PTTA. The findings of the Court directly apply to the Applicant in this proceeding.
The approach and limits to evidence disclosure as set out under the PTTA breach the Applicant’s rights, including her Charter entitlement to procedural fairness in this context pursuant to section 7 of the Charter of Rights and Freedoms.
The PTTA is unconstitutional to the extent that it prevents [sic] individuals subject to the regime the procedural safeguards required to effectively challenge a decision to issue them a passport on national security grounds in relation to the rights of the individual that are engaged, Charter or otherwise, through the refusal to issue them a passport.
[21]
The period during which Ms. Jama was ineligible for passport services expired on December 31, 2019.
[22]
On February 14, 2020, the Amicus brought a motion for directions and leave to cross-examine the AGC’s confidential affiant on the merits of the decision under review.
[23]
On April 29, 2020, Justice LeBlanc was elevated to the Federal Court of Appeal.
[24]
The COVID-19 pandemic caused significant disruption to the Court’s proceedings and restricted access to the Court’s secure facilities. The first case management conference with the parties and the Amicus following Justice LeBlanc’s elevation to the Federal Court of Appeal did not occur until December 7, 2020.
[25]
The hearing of the Amicus’ motion for directions and leave to cross-examine the confidential affiant was scheduled for February 23, 2021. However, in light of Justice Noël’s decisions in Brar v Canada (Public Safety and Emergency Preparedness), 2020 FC 729 and Gaya v Canada (Public Safety and Emergency Preparedness), 2020 FC 731, the AGC conceded that the Amicus should be given an opportunity to cross-examine the confidential affiant on the merits of the decision under review. An Order to this effect was issued on February 23, 2021.
[26]
The Amicus’ cross-examination of the confidential affiant took place during an in camera, ex parte hearing on June 23, 2021. A public summary of the hearing was issued to the parties, including Ms. Jama, on June 30, 2021. The public summary included an observation by the Court that, particularly in light of the Federal Court of Appeal’s decision in Canadian Union of Public Employees (Air Canada Component) v Air Canada, 2021 FCA 67 [CUPE], it would be necessary for the parties and the Amicus to address the question of mootness.
[27]
A further public summary was issued to the parties, including Ms. Jama, on August 4, 2021, clarifying that Ms. Jama was no longer alleged to be a “senior”
member of AS.
IV.
Issue
[28]
The sole issue addressed in these Reasons for Judgment is whether the Court should exercise its discretion to decide Ms. Jama’s application for judicial review, notwithstanding that it has become moot.
V.
Analysis
[29]
The application of the mootness doctrine involves a two-step analysis. The first step requires an assessment of whether the tangible and concrete dispute between the parties has disappeared. The court must determine whether there is still a “live controversy”
. If there is no longer a live controversy between the parties, the second step of the analysis requires the court to decide whether it should nevertheless exercise its discretion to hear the case (Heiltsuk Horizon Maritime Services Ltd v Atlantic Towing Limited, 2021 FCA 26 at para 74, citing Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342 [Borowski] at 353).
[30]
It is common ground among the parties and the Amicus that there is no longer a live controversy in this proceeding. Ms. Jama has been eligible to apply for a passport for more than two years.
[31]
A mere jurisprudential interest fails to satisfy the need for a concrete and tangible controversy (CUPE at para 7, citing Borowski at 353).
[32]
Whether a court should exercise its discretion to hear a matter where there is no live controversy involves a consideration of the following factors (CUPE at para 9):
(a)
the absence or presence of an adversarial context;
(b)
whether there is any practical utility in deciding the matter or if it is a waste of judicial resources; and
(c)
whether the court would be exceeding its proper role by making law in the abstract, a task reserved for Parliament.
[33]
Both parties, represented by counsel, take opposing positions respecting the merits of the application and the constitutional question, and accordingly an adversarial context remains (CUPE at para 10).
[34]
Neither the parties nor the Amicus have expressed any concern about the Court exceeding its proper role if it exercises its discretion to hear this case. Ms. Jama says this proceeding raises important matters of public interest pertaining to the scope and legality of the PTTA that only courts can determine. Ms. Jama also has a private interest in dispelling any suggestion that she presents a threat to Canada’s national security.
[35]
The AGC agrees that the Court will not exceed its proper adjudicative role by deciding the issues that have become moot. The parties are not seeking abstract pronouncements from the Court. Rather, the issues arise from existing legislation. The Court will not be creating new law, but will be performing its essential task of ensuring that government action accords with principles of administrative and constitutional law.
[36]
The concern for conserving judicial resources is partially answered if the Court’s decision will have some practical effect on the rights of the parties, notwithstanding that it will not have the effect of determining the controversy which gave rise to the litigation. Similarly, an expenditure of judicial resources may be warranted in cases that, while moot, are of a recurring nature but brief duration. The mootness doctrine is not applied strictly, to ensure important questions that might independently evade review are heard by the Court (Borowski at 360).
[37]
Ms. Jama and the AGC have identified the following considerations that potentially favour deciding the moot issues raised in this proceeding:
Rehabilitation of Ms. Jama’s reputation.
Efficient use of scarce judicial resources.
Resolution of questions that are evasive of judicial review.
[38]
I am not persuaded that any of these considerations warrant hearing the application for judicial review on its merits, or deciding the constitutional question in the absence of a live controversy.
A.
Rehabilitation of Ms. Jama’s reputation
[39]
Ms. Jama argues that there is a practical benefit to deciding the merits of the application, even though she is now eligible to apply for a passport. She says that her reputation has been harmed by the refusal of passport services based on an unproven allegation that she may use her passport to commit or facilitate acts of terrorism. She maintains that the primary purpose of this litigation has always been to clear her name.
[40]
The AGC concedes that if Ms. Jama were to apply for a passport today, this would result in a fresh decision based on new evidence, including evidence of how she has conducted herself over the past six years. The AGC nevertheless says there is “a real possibility”
that the information considered in the previous decision, much of which is at least a decade old, may once again be before the Minister’s delegate in any new application. The AGC suggests that it would be beneficial to obtain instructions from the Court to guide a future decision-maker.
[41]
In Hazime v Canada (Citizenship and Immigration), 2011 FC 1527, Justice Russel Zinn was asked to hear a moot case because the applicant did not want “a decision that says he is a danger to the public or a flight risk”
on the public record. Justice Zinn declined to hear the case, holding as follows (at para 23):
Even if this Court were to find that the Member’s decision is unreasonable and set it aside, it could not find that the applicant is not a danger to the public or a flight risk. It could only send the matter back to be determined by another Member. Moreover, the present application does not relate to the unreasonableness of all the other 11 detention review hearings which found the applicant to be a danger to the public and a flight risk. Those decisions will remain on the applicant’s file and record with the immigration authorities.
[42]
In Ramoutar v Canada (Minister of Employment and Immigration), [1993] 3 FC 370, Justice Marshall Rothstein exercised his discretion to hear an application for judicial review of a decision not to refer the applicant’s case to the Governor in Council for an exemption on humanitarian and compassionate grounds from the requirement to apply for landed immigrant or permanent resident status from outside Canada. Justice Rothstein found that the decision under review could continue to have an adverse effect on the applicant in the future:
In this case, a decision very damaging to the Applicant is now part of the Applicant’s record for immigration purposes. That decision could have an adverse effect on the Applicant in any further proceedings he may wish to bring under Canada’s immigration laws. For example, if the Applicant wished to make an application for landed immigrant status in the conventional manner from Trinidad, the immigration officer at the Visa Office in Trinidad will likely be aware of the August 17, 1992 decision.
[43]
In this case, it is doubtful that the Court could grant Ms. Jama any remedy she does not already possess. If the Court were to dismiss the application on its merits, Ms. Jama would still be at liberty to apply for a new passport. A decision on the constitutional question would be limited to the procedures mandated by the PTTA, and would have no bearing on the assessment by the Minister’s delegate of a new passport application.
[44]
If the Court were to find that the denial of Ms. Jama’s passport application in 2015 was unreasonable, the most appropriate remedy would likely be to remit the matter to the decision maker for reconsideration (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 141). This would entail a fresh decision based on updated evidence – precisely what will occur if Ms. Jama applies for a passport without awaiting judicial intervention.
[45]
As the Amicus states in his written submissions, if Ms. Jama wishes to “remediate her reputation”
in the eyes of the public at large, then it is unclear how a decision of this Court on the merits of the application for judicial review would have any greater impact than if she were to receive a passport following a new application.
[46]
The public summary issued to the parties on June 23, 2021 contained an important qualification of the evidence previously disclosed to Ms. Jama. The witness who testified in camera clarified that references to Ms. Jama being a “senior”
member of AS were “overstatements”
. The Amicus notes that this qualification, together with the passage of time, may play a role in the assessment of a future application by Ms. Jama for passport services.
B.
Efficient use of scarce judicial resources
[47]
When this matter first became moot two years ago, the AGC informed the Court and other participants that he would not seek to have the application dismissed on that basis. The AGC has not retreated from this position. However, as illustrated by the Federal Court of Appeal’s decision in CUPE, a court may exercise its discretion not to hear a moot case even if all parties agree that the matter should proceed (CUPE at para 5).
[48]
The AGC notes that this is the first proceeding under the PTTA to reach an advanced stage of litigation. According to the AGC, continuing the proceedings to their conclusion would not involve the expenditure of significant additional resources, and a decision regarding the constitutionality of the PTTA would be of jurisprudential value.
[49]
In Jama, Justice LeBlanc observed that the Court had appointed the Amicus to ensure Ms. Jama received adequate procedural protections. She nevertheless asserted that the PTTA is constitutionally deficient because the appointment was an ad hoc determination, left entirely to the Court’s discretion (Jama at para 44).
[50]
It was only after Justice LeBlanc’s ruling in Jama that Ms. Jama sought leave to amend her Notice of Application to include a constitutional challenge to the PTTA. She filed an amended Notice of Application on August 1, 2019, just five months before the period during which she was ineligible for passport services was set to expire on December 31, 2019.
[51]
According to Ms. Jama’s written submissions, deciding the constitutional question:
[…] will have a wide ranging and significant impact on the substance and approach to judicial reviews under the legislation. A decision on the constitutionality of the PTTA will inform both courts and parties on how passport services can be suspended in the national security context, but critically, also provide procedural and substantive guidance on how judicial reviews [under] section 6 of the legislation are to proceed.
[52]
Ms. Jama says that dismissing the application for judicial review as moot would waste scarce judicial resources and those of the parties. She asserts that similar resources will likely have to be expended to re-litigate the issues if there is no final decision on the procedural and constitutional questions raised.
[53]
Justice LeBlanc’s decision in Jama addressed numerous procedural issues arising from the application of s 6(2) of the PTTA. His analysis included a consideration of Ms. Jama’s constitutional arguments, albeit in the context of determining whether s 6(2) permits public interest balancing – at that time, Ms. Jama did not allege that the PTTA was itself unconstitutional (Jama at paras 43-46). Accordingly, many of the jurisprudential issues identified by Ms. Jama and the AGC have already been resolved in these proceedings. If the Minister’s delegate were to refuse a future passport application by Ms. Jama based on the same classified information considered by the Court in Jama, Justice LeBlanc’s conclusions respecting disclosure would continue to be relevant.
[54]
In Gentile v Canada (Citizenship and Immigration), 2020 FC 452 [Gentile], Justice Nicholas McHaffie was urged to exercise his discretion to decide a moot case in part because “court resources have already been allocated to hearing the matter”
(at para 15). Justice McHaffie found that the fact a matter has already been heard does not itself address the concern about judicial economy, noting that in Borowski the parties had argued the matter on its merits, but the Supreme Court still declined to decide the merits on the basis of mootness. Justice McHaffie concluded that the interests of judicial economy did not weigh strongly in favour of or against the exercise of discretion (Gentile at para 16). In CUPE, the Federal Court of Appeal declined to decide the merits of the appeal even though it had been fully argued by the parties before both that court and in the court below.
[55]
In the present case, the in camera, ex parte evidentiary hearings have been completed. However, neither the merits of the application nor the constitutional challenge have been argued. I agree with the Amicus that there has not been an inordinate amount of court time devoted to this proceeding.
[56]
A further consideration, perhaps unique to this case, is that the judge who heard the vast majority of the evidence that was presented in camera, ex parte is not the judge who will decide the application for judicial review. Justice LeBlanc had the benefit of hearing viva voce evidence and contemporaneous legal arguments by the AGC and the Amicus, and this no doubt helped to inform his understanding of the case. Following Justice LeBlanc’s elevation to the Federal Court of Appeal, the judge who decides the application must assess the reasonableness of the decision of the Minister’s delegate, and the credibility of the Minister’s confidential witnesses, based predominantly on a paper record.
[57]
The parties have filed brief written submissions respecting the constitutional issue. The AGC takes the position that Ms. Jama has failed to demonstrate that the application of the PTTA in her personal circumstances has deprived her of the right to life, liberty or security of the person: “Indeed, she makes no submission on this point and provides no evidence in support. Her application should be dismissed on this basis without any further consideration”
.
[58]
The Amicus agrees that the evidence offered by Ms. Jama in support of her constitutional challenge does not demonstrate that her rights and interests under s 7 of the Charter have been infringed. Although Ms. Jama alludes to mobility rights in her written submissions, the Amicus notes that she did not refer to s 6 of the Charter in her application to the Court. Her written submissions seek only a declaration respecting s 7 of the Charter. The Amicus states that the Court is not required to proceed to a full Charter analysis if the evidence is not sufficiently robust: “Judicial economy dictates that judges should not squander time and resources on matters they need not decide”
(citing R v Lloyd, 2016 SCC 13 at para 18).
[59]
It appears that only modest resources have been devoted by the parties to evidence and arguments respecting the constitutional question.
C.
Resolution of questions that are evasive of judicial review
[60]
The AGC acknowledges that the legal issues raised in this application are capable of repetition, but says there are currently no other proceedings under the PTTA that have progressed to the same stage as this one. There is currently no other constitutional challenge to this legislation before the courts.
[61]
The AGC notes that in Thompson v Attorney General of Ontario, 2011 ONSC 2023 [Thompson], Justice David Brown of the Ontario Superior Court cited Peter Hogg, Constitutional Law of Canada, 5th ed (Scarborough, Ont: Carswell, 2007) for the proposition that the Supreme Court of Canada usually exercises its discretion in favour of deciding constitutional cases even if there is no longer a live controversy between the parties (at para 12). In oral argument, counsel for the AGC readily conceded that the Supreme Court occupies a different place in the judicial hierarchy than courts of first instance, and many constitutional questions of national importance will inevitably be moot by the time they reach the court of last resort.
[62]
Furthermore, Thompson concerned a constitutional challenge to the assessment and involuntary admission provisions of the Ontario Mental Health Act, RSO 1990, c M.7. Justice Brown refused a motion to dismiss the case as moot, in part because of the short duration of orders made under the impugned provisions (Thompson at para 50):
[…] I would note that the unique temporal aspects of the legislation in question pose practical challenges to the collection of evidence to support a Charter challenge to the statute. Assessment orders last for 72 hours; involuntary admission orders run for 14 days, with an opportunity for renewal; and CTOs last six months, again subject to renewal. The short duration of those orders presents practical problems for bringing a challenge to the legislation authorizing those orders – a person may well be free and clear of an order before the steps can be taken to bring an application in this court to challenge the relevant statutory provisions. […]
[63]
Counsel for Ms. Jama was given an opportunity to apprise the Court of other cases where a court of first instance had decided a constitutional question in the absence of a live controversy. He identified two decisions: JH v Alberta Health Services, 2017 ABQB 477 [JH]; and Brown v Canada (Citizenship and Immigration), 2017 FC 710 [Brown].
[64]
Like Thompson, JH involved a constitutional challenge to provincial mental health legislation. Justice Kristine Eidsvik of the Alberta Court of Queen’s Bench exercised her discretion to hear the matter, observing as follows (at para 23):
Generally, considering the temporary nature of most certificates and their short duration, a live controversy is not likely to be a common occurrence. [Alberta Health Services’] counsel indeed indicated that most of the time when parties challenge their certificates, for time efficiency, the constitutional challenges, if any are set aside and then not pursued if they are released. Calgary Legal Guidance also confirmed that this was their experience.
[65]
My ruling in Brown similarly involved a decision that was evasive of constitutional review, in part because immigration detention must be reviewed every 30 days and each new decision renders the previous one moot (Brown at paras 37-38).
[66]
By contrast, there is nothing to suggest that denials of passports or refusals of passport services pursuant to ss 10.1 and 10.2 of the CPO are inherently evasive of judicial review. The AGC did not provide the Court with data regarding the number of refusals of passports and passport services on national security grounds. However, counsel for the AGC informed the Court that another application for judicial review of a similar decision was commenced, but then discontinued. A further application (Nefkha-Bahri c Canada (Citoyenneté et Immigration), Court File No T-780-21) is currently before the Court.
[67]
While this is the first case of its kind to reach an advanced stage of litigation, it is also one of the first cases to be decided by the Minister’s delegate under procedures that were newly implemented in 2015. It took the Minister’s delegate approximately two years to issue a decision, and the four-year refusal of passport services was then made retroactive to 2015. A refusal of passport services under s 10.2 of the CPO may be for a maximum period of 10 years, which affords ample time for judicial review, accompanied by a constitutional challenge to the PTTA if desired.
VI.
Conclusion
[68]
The application for judicial review should be dismissed on the ground that it is moot, and there are insufficient grounds for the Court to hear the application on its merits, or to decide the constitutional question in the absence of a live controversy.
[69]
If the parties wish to address costs or any other question pertaining to remedies, they may make written submissions not exceeding seven (7) pages within twenty-one (21) days of the date of these Reasons for Judgment. Responding written submissions, including from the Amicus, not exceeding five (5) pages, may be made within fourteen (14) days thereafter.
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