Canada (Minister of Citizenship and Immigration) v. Varela (T.D.) [2002] 4 F.C. 144
Date: 20020214
Docket: IMM-2807-00
Neutral citation: 2002 FCT 167
BETWEEN:
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Applicant
and
JAMIE CARRASCO VARELA
Respondent
INTRODUCTION
[1] These reasons arise out of an application for judicial review of a decision of an Adjudicator ("the Adjudicator") in the Adjudication Division of the Immigration and Refugee Board in which the Adjudicator dismissed an application made before him on behalf of the Minister of Citizenship and Immigration (the "Minister") requesting that the Adjudicator find himself bound by a decision of my colleague Mr. Justice Pinard in Figueroa et al c. Canada (Ministre de la Citoyenneté et de l'Immigration)[1] (hereinafter "Figueroa"). The decision under review was delivered orally "from the bench" on the 24th of May, 2000.
BACKGROUND
[2] By notice of motion filed the 12th of June, 2000, the Minister sought, among other things, an injunction preventing, until the application for leave and for judicial review is finally determined, the continuation of the Adjudicator's inquiry regarding paragraph 19(1)(j) of the Immigration Act[2] (the "Act") and "...concerning Jamie Carrasco Varela (the "Respondent").
[3] My colleague Mr. Justice Lemieux granted the injunctive relief sought on behalf of the Minister on the 5th of July, 2000. In related reasons, Mr. Justice Lemieux described the background to this application for judicial review in the following terms:
[3] The respondent is a citizen of Nicaragua. He served in the military from August 1983 to October 1989. Two years after joining the army, he became a member of the Sandanista Front of National Liberation (FSLN).
[4] He, his wife and son came to Canada in August of 1991 and made refugee claims on grounds of their political opinions and membership in a particular social group.
[5] On March 20, 1992, the Refugee Division determined the respondent was not a person covered by the Convention because of Article 1F(a) which states it shall "not apply to any person with respect to whom there are serious reasons for considering that he has committed ... a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes."
[6] The Federal Court of Appeal on June 4th, 1992, denied the respondent leave to appeal from the Refugee Division's decision.
[7] The record indicates the 24th of June 1993, the then Minister authorized the issuance of a permit to the respondent and his family to proceed to landing after they had complied with all statutory requirements of the Immigration Act and Regulations.
[8] On October 20, 1999, a report was made to the Deputy Minister responsible under the Act by an immigration officer under paragraph 27(2)(a) and subsection 27(2.01) of the Act stating the respondent was a person in Canada, other than a Canadian citizen or permanent resident, who if he were applying for entry would not or might not be granted entry by reason of being a member of the inadmissible class described in paragraph 19(1)(j) of the Act.
[9] Paragraph 19(1)(j) of the Act reads:
19(1) No person shall be granted admission who is a member of any of the following classes:
...
(j) persons who there are reasonable grounds to believe have committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of subsection 7(3.76) of the Criminal Code and that, if it had been committed in Canada, would have constituted an offence against the laws of Canada in force at the time of the act or omission;
19.(1) Les personnes suivantes
appartiennent à une catégorie non
admissible:
...
(j) celles dont on peut penser,
pour des motifs raisonnables, qu'elles
ont commis, à l'étranger, un fait
constituant un crime de guerre ou un
crime contre l'humanité au sens du
paragraphe 7(3.76) du Code criminel
et qui aurait constitué, au Canada, une
infraction au droit canadien en son état
à l'époque de la perpétration;
[10] Subsection 7(3.76) of the Criminal Code ("the Code") reads:
(3.76) For the purposes of this section,
"conventional international law" « droit international conventionnel »
"conventional international law" means
(3.76) Les définitions qui suivent
s'appliquent au présent article.
« droit international conventionnel »
"conventional international law"
« droit international conventionnel »
(a) any convention, treaty or other international agreement that is in force and to which Canada is a party, or
(b) any convention, treaty or other international agreement that is in force and the provisions of which Canada has agreed to accept and apply in an armed conflict in which it is involved:
"crime against humanity" « crime contre l'humanité »
"crime against humanity" means murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations;
"war crime" « crime de guerre »
"war crime" means an act or omission that is committed during an international armed conflict, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of the customary international law or conventional international law applicable in international armed conflicts.
Conventions, traités et autres ententes
internationales en vigueur auxquels le
Canada est partie, ou qu'il a accepté
d'appliquer dans un conflit armé auquel
il participe.
« crime contre l'humanité » "crime
against humanity"
« crime contre l'humanité » Assassinat,
extermination, réduction en esclavage,
déportation, persécution ou autre fait -
acte ou omission - inhumain d'une part,
commis contre une population civile ou
un groupe identifiable de personnes - qu'il
ait ou non constitué une transgression du
droit en vigueur à l'époque et au lieu de
perpétration - et d'autre part, soit constituant, à l'époque et dans ce lieu, une transgression
du droit international coutumier ou conventionnel,
soit ayant un caractère criminel d'après les principes
généraux de droit reconnus par l'ensemble
des nations.
« crime de guerre » "war crime"
« crime de guerre » Fait - acte ou
omission - commis au cours d'un
conflit armé international - qu'il
ait ou non constitué une transgression
du droit en vigueur à l'époque et
au lieu de la perpétration - et
constituant, à l'époque et dans ce lieu,
une transgression du droit international
coutumier ou conventionnel applicable
à de tels conflits.
[11] Pursuant to paragraph 27(3)(b) and subsection 27(6) of the Act, a senior immigration officer caused an inquiry by the Adjudicator on the respondent's inadmissibility.
It was at an early stage in the inquiry by the Adjudicator referred to in the last paragraph of the preceding quotation that the decision here under review was made. Since the making of the decision, two significant events have occurred: first, paragraph 19(1)(j) of the Act and subsection 7(3.76) of the Criminal Code[3] were repealed and replaced in consequence of the enactment of the Crimes Against Humanity and War Crimes Act[4]; and secondly, an appeal of Mr. Justice Pinard's decision in Figueroa was heard and disposed of. More will be said regarding these matters later in these reasons.
THE DECISION UNDER REVIEW
[4] One of the issues raised on this application for judicial review is whether or not the Adjudicator's decision, and in particular his reasons for that decision, give rise to a reasonable apprehension of bias on the part of the Adjudicator against the Minister. For this reason, the Adjudicator's reasons are set out in full in a schedule to these reasons.
THE RELEVANT LAW
a) Paragraph 19(1)(j) of the Immigration Act and Provisions of Law referred to therein
[5] The relevant portions of subsection 19(1) of the Act as it read at the time the decision under review was made are quoted earlier in these reasons in the context of the reasons of Mr. Justice Lemieux in Varela. They need not be repeated again.
[6] Effective the 23rd of October, 2000, the Crimes Against Humanity and War Crimes Act came into force and repealed and replaced paragraph 19(1)(j) of the Immigration Act so that the opening words of subsection 19(1) and paragraph (j) now read as follows:
19. (1) No person shall be granted admission who is a member of any of the following classes:
...
(j) persons who there are reasonable grounds to believe have committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
...
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
...
j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis une infraction visée à l'un des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre;
...
[7] Subsection 6(1) and the relevant portions of subsection 6(3) of the Crimes Against Humanity and War Crimes Act read as follows:
6. (1) Every person who, either before or after the coming into force of this section, commits outside Canada
(a) genocide,
(b) a crime against humanity, or
(c) a war crime,
is guilty of an indictable offence and may be prosecuted for that offence in accordance with section 8.
...
6. (1) Quiconque commet à l'étranger une des infractions ci-après, avant ou après l'entrée en vigueur du présent article, est coupable d'un acte criminel et peut être poursuivi pour cette infraction aux termes de l'article 8_:
a) génocide;
b) crime contre l'humanité;
c) crime de guerre.
...
(3) The definitions in this subsection apply in this section.
(3) Les définitions qui suivent s'appliquent au présent article.
"crime against humanity" « _crime contre l'humanité_ »
"crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group and that, at the time and in the place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognized by the community of nations, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
...
« _crime contre l'humanité_ » "crime against humanity"
« _crime contre l'humanité_ » Meurtre, extermination, réduction en esclavage, déportation, emprisonnement, torture, violence sexuelle, persécution ou autre fait -- acte ou omission -- inhumain, d'une part, commis contre une population civile ou un groupe identifiable de personnes et, d'autre part, qui constitue, au moment et au lieu de la perpétration, un crime contre l'humanité selon le droit international coutumier ou le droit international conventionnel ou en raison de son caractère criminel d'après les principes généraux de droit reconnus par l'ensemble des nations, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
...
"war crime" « crime de guerre_ »
"war crime" means an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission.
« _crime de guerre_ » "war crime"
« _crime de guerre_ » Fait -- acte ou omission -- commis au cours d'un conflit armé et constituant, au moment et au lieu de la perpétration, un crime de guerre selon le droit international coutumier ou le droit international conventionnel applicables à ces conflits, qu'il constitue ou non une transgression du droit en vigueur à ce moment et dans ce lieu.
b) The Figueroa decisions
[8] Mr. Justice Lemieux, in his reasons for his earlier interlocutory decision in this matter, wrote at paragraphs [14] and [15]:
[14] Mr. Justice Pinard interpreted paragraph 19(1)(j) as containing a two-pronged test as described above. As to the first prong, my colleague said this at paragraph 15:
[15] In my opinion, a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under paragraph 19(1)(j) of the Act has been fulfilled.
[15] I was informed by counsel for the Minister the thrust of his argument before the Adjudicator on the ruling which is contested by the Minister in the underlying application for leave and judicial review was (1) Figueroa was binding on the Adjudicator; (2) the issue of whether there were reasonable grounds for believing the respondent had committed a crime against humanity was res judicata in view of the Federal Court of Appeal's denial of leave to the respondent in 1992; and (3) a comity or respect for the Refugee Division's 1992 determination was required.
[9] The Court of Appeal upheld Mr. Justice Pinard's decision in Figueroa[5] but in its reasons did not comment directly on paragraph [15] of Mr. Justice Pinard's reasons, as quoted by Mr. Justice Lemieux. However, Madame Justice Desjardins, for the Court of Appeal, did write the following at paragraphs [10] and [13] of her reasons:
[10] We are of the opinion, on the contrary, that on the evidence in the record, the immigration officer had "reasonable grounds" to conclude that one of them should be excluded based on the second element of paragraph 19(1)(j) of the Act.
...
[13] The immigration officer accordingly had ample evidence on which he could have concluded that one of the appellants was a person described in paragraph 19(1)(j) of the Act. [emphasis added]
[10] I will comment later in these reasons on whether or not it might be inferred from the foregoing quoted paragraphs that the panel of the Court of Appeal which considered Figueroa implicitly disagreed with Mr. Justice Pinard's statement that an earlier finding by the Convention Refugee Determination Division (the "CRDD") that the Respondent is excluded from refugee protection, is conclusive on that issue.
THE ISSUES
[11] Preliminary issues on this application for judicial review as to whether this Court has jurisdiction to hear the application and, if it does, whether leave should be granted, were disposed of by my colleague Mr. Justice Lemieux.
[12] The remaining issues identified on behalf of the Minister in the Minister's Memorandum of Argument are whether the Adjudicator committed errors of law requiring this Court's intervention and whether the Adjudicator demonstrated a reasonable apprehension of bias that requires this Court's intervention.
[13] Two additional issues were identified during the course of argument before me. The first is whether or not this application for judicial review is moot given the intervening amendments to the applicable law. The second is what law should be applied by the Adjudication Division when the inquiry before it that was adjourned sine die prior to the commencement of this application for judicial review and the resumption of which was enjoined by Order of Mr. Justice Lemieux until this judicial review is finally determined, is resumed. I will deal with these additional issues first.
ANALYSIS
a) Mootness and Applicable Law
[14] Counsel who appeared before me were in agreement, albeit on the basis of somewhat differing reasoning, that the repeal and replacement of paragraph 19(1)(j) of the Immigration Act did not render this application for judicial review, or the inquiry out of which it arises, moot.
[15] Counsel for the applicant urged that the new paragraph 19(1)(j), when read together with sections 4 to 7 of the Crimes Against Humanity and War Crimes Act that are referred to in paragraph 19(1)(j) constitutes a provision of law that is substantially similar to the repealed provisions. Counsel submits in his Memorandum of Fact and Law:
The definition of crimes against humanity has been expanded and "imprisonment, torture and sexual violence" are now enumerated. However, the definition of crimes against humanity is substantially the same as was contained in s. 19(1)(j) of the old Act which incorporated by reference the definition of crimes against humanity contained in s. 7(3.76) of the Criminal Code. Under the new s. 19(1)(j) of the Act, there is no longer a requirement to show that an act or omission is contrary to the law in force in Canada at the time of the act or omission.
I am in agreement with counsel that neither this application for judicial review nor the inquiry before the Adjudicator out of which it arises, is moot.
[16] I turn to the second "additional issue" that is identified in paragraph [13] of these reasons, that is to say, the applicable law. The Crimes Against Humanity and War Crimes Act contains no transitional provision in relation to an inquiry under paragraph 19(1)(j) of the Immigration Act that was in progress or, as here, suspended, at the time the Crimes Against Humanity and War Crimes Act came into force.
[17] In the 3rd edition of Driedger on the Construction of Statutes,[6] the learned author writes at page 526:
In the absence of a specific transitional provision, the general rules set out in Interpretation Acts apply. Under the Interpretation Acts of all Canadian jurisdictions, provision is made for the continued application of repealed legislation to facts occurring prior to repeal. At the federal level, s. 43 provides:
43. Where an enactment is repealed in whole or in part, the repeal does not
...
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, (d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or (e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),
and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
In other words, the repeal of an enactment does not destroy any right, privilege, obligation, or liability arising under the repealed enactment, nor does it forgive any contravention of the repealed law. Investigations or proceedings relating to pre-repeal events may be begun and continued under the old enactment despite its repeal. And the remedies and punishments provided for under the old enactment still apply as if the repeal had not occurred. In short, the repealed law continues to apply to pre-repeal facts for most purposes as if it were still good law. [citation omitted, emphasis added]
[18] I am satisfied that the circumstances before me and before the Adjudicator represent one of the limited purposes for which the repealed law does not continue to apply. The relevant portions of section 44 of the Interpretation Act[7] read as follows:
44. Where an enactment, in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefor,
...
44. En cas d'abrogation et de remplacement, les règles suivantes s'appliquent_:
...
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
...
c) les procédures engagées sous le régime du texte antérieur se poursuivent conformément au nouveau texte, dans la mesure de leur compatibilité avec celui-ci;
...
(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;
...
f) sauf dans la mesure où les deux textes diffèrent au fond, le nouveau texte n'est pas réputé de droit nouveau, sa teneur étant censée constituer une refonte et une clarification des règles de droit du texte antérieur;
...
[19] I am satisfied that the repeal and replacement of paragraph 19(1)(j) of the Immigration Act, together with the related amendments to the Criminal Code and the enactment of the related provisions of the Crimes Against Humanity and War Crimes Act, fall within the ambit of section 44, that is to say, it represents a situation where an enactment, the "former enactment", was repealed and another enactment, the "new enactment", was substituted therefor. Paragraph 44(c) of the Interpretation Act provides that the inquiry here under consideration should, when resumed, be taken up and continued in conformity with the new enactment insofar as that may be done consistently with the new enactment, and I am satisfied that it can be done consistently with the new enactment. Paragraph 44(f) provides that, except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment. I am satisfied that, for the purposes of the inquiry here under consideration, the provisions of the new enactment are "in substance" the same as those of the former enactment.
b) Standard of Review
[20] While standard of review was not addressed as an issue on this application for judicial review, I will nonetheless comment briefly on it. The standard of review on a "jurisdictional" decision of the Immigration Appeal Division of the Immigration and Refugee Board was recently addressed by the Supreme Court of Canada in Chieu v. Canada (Minister of Citizenship and Immigration)[8] at paragraphs 23 to 26. While the decision here under review is that of an Adjudicator, and not of the Immigration Appeal Division, I am satisfied that the analysis in Chieu, based as it is on the pragmatic and functional approach, is directly applicable. At paragraph [24], Mr. Justice Iacobucci, for the Court, wrote:
The IAD enjoys no relative expertise in the matter of law which is the object of the judicial review. While in Pushpanathan the matter under review was a human rights issue, an area of law in which deference is usually not given, the issue here is one of jurisdiction, a similar area where little deference is shown. Administrative bodies generally must be correct in determining the scope of their delegated mandate, given that they are entirely the creatures of statute.
I am satisfied that, as in Chieu, the issue here is one of jurisdiction, that is to say, the scope of an adjudication under paragraph 19(1)(j) of the Act where the CRDD has previously dealt with an issue that would normally constitute part of the Adjudicator's mandate under paragraph 19(1)(j), and an application to the Federal Court of Appeal for leave to seek judicial review of the CRDD decision has been denied.
[21] The decision of the Supreme Court of Canada in Chieu was, not surprisingly, not cited before me, since that decision was delivered the day after the hearing before me. I nonetheless determine to adopt the reasoning in Chieu. As regards to the allegation that the Adjudicator erred in law in deciding as he did, I will review his decision on a standard of correctness.
c) Error of Law
[22] Counsel for the applicant urged that the Adjudicator erred in law in determining himself not to be bound by the earlier decision of the CRDD to the effect that the respondent was excluded from Convention refugee status by virtue of Article 1F(a) of the Convention, particularly in light of the decision of the Federal Court of Appeal to deny leave for judicial review of the CRDD decision and the decisions of this Court at both the trial and appeal levels in Figueroa.
[23] I am satisfied that it is beyond doubt that neither the former paragraph 19(1)(j) of the Act, nor the re-enactment of that paragraph, provides any direction to an Adjudicator that an earlier decision of the Convention Refugee Determination Division to exclude an individual from Convention refugee status, by reason of a conclusion that there are serious reasons for considering that the individual has committed a war crime or a crime against humanity, is determinative of an issue before the Adjudicator; that is to say, whether there are reasonable grounds to believe that the same individual has committed an act or omission outside Canada that constituted a war crime or a crime against humanity within the meaning of former subsection 7(3.76) of the Criminal Code, or an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act. If Parliament had intended that an earlier decision of the CRDD be binding on the Adjudicator, it could easily have said so. The Immigration Act provides a number of instances where Parliament has achieved a parallel outcome[9].
[24] The decision of Mr. Justice Pinard in Figueroa, earlier referred to, was taken on different facts, and in the context of a matter that was before an immigration officer, not an Adjudicator[10]. Also as previously indicated in these reasons, the Federal Court of Appeal, on the appeal of Mr. Justice Pinard's decision in Figueroa, was at best ambivalent on Mr. Justice Pinard's expression of his opinion at paragraph [15] of his reasons to the effect that "...a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under s.19(1)(j) of the Act has been fulfilled." It can at least be argued that Madame Justice Desjardins' reasons in Figueroa, as cited earlier in these reasons, imply that the issue remains open for determination by an Immigration Officer in the circumstances of Figueroa and, a fortiori in light of the terms of subsection 80.1(1) of the Act, when the issue is before an Adjudicator.
[25] I am satisfied that counsel for the Minister invites the Court to read more into the Federal Court of Appeal's denial of leave to seek judicial review of the decision of the CRDD regarding the respondent than is warranted. At the relevant time, as now, the test for leave to seek judicial review was that set out in Bains v. Canada (Minister of Employment and Immigration)[11] where Mr. Justice Mahoney wrote that the only question on an application for leave to seek judicial review is whether a "fairly arguable case" was disclosed for the relief proposed to be sought on judicial review. The denial of leave by the Federal Court of Appeal did not tell us that the CRDD's decision was correct, reasonably open to it, or not patently unreasonable. More specifically, denial of leave did not tell the Adjudicator whose decision is here under review that the Court of Appeal found the CRDD's decision to exclude the respondent from Convention protection by virtue of Article 1F(a) of the Convention was appropriate under any particular standard of review.
[26] In the result, against a standard of review of correctness, I am satisfied that the Adjudicator committed no error of law, and indeed no reviewable error whatsoever, in concluding as he did in the decision here under review that he was not bound by the earlier determination by the CRDD. That is not to say that it would not be open to the Adjudicator, or any other adjudicator, to take into account the earlier decision of the CRDD. It is simply to say that the Adjudicator committed no reviewable error in deciding as he did.
d) Reasonable Apprehension of Bias
[27] In Committee for Justice and Liberty et al v. National Energy Board,[12] the Supreme Court of Canada established the test for reasonable apprehension of bias as being whether or not an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision maker would unconsciously or consciously decide an issue unfairly.
[28] I have reviewed the transcript of the hearings before the Adjudicator that led to his decision here under review. I have also taken into account the extensive affidavit filed on behalf of the Minister in this matter. Finally, I have considered the reasons of the Adjudicator for the decision here under review that are a schedule to these reasons. I have given particular consideration to a brief passage from those reasons that was highlighted before me on behalf of the Minister. That passage is to the following effect:
In conclusion, I am compelled to reject the arguments of counsel for the Minister of Citizenship and Immigration. In my view, to rule otherwise, would bring the administration of justice for this inquiry into disrepute. I also query why the Immigration department would compromise it's [sic] position at the inquiry of Jaime Carrasco Varela by the submissions made in accordance with the Figueroa decision.
[29] While it is clear that the Adjudicator and counsel for the Minister were strongly in disagreement on submissions made on behalf of the Minister, and indeed expressed their disagreement in forceful language that might reasonably have been tempered on sober second thought, I am not satisfied on the totality of the material before me that the test for a reasonable apprehension of bias has here been satisfied.
CONCLUSION
[30] In the result, this application for judicial review will be dismissed. Unless an appeal is taken from my decision, and I will have more to say about that in the paragraphs that follow, the stay of the inquiry before the Adjudicator that was imposed by Order of my colleague Mr. Justice Lemieux on the 5th of July, 2000 is lifted. The inquiry may then be resumed before the same or a different Adjudicator.
CERTIFICATION OF A QUESTION
[31] At the close of the hearing on this matter, I undertook to provide copies of my reasons to counsel in order to allow them an opportunity to consider whether or not to propose a question for certification if I were satisfied that certification of a question on my decision would be appropriate. I am satisfied that, if counsel were to propose a serious question of general importance, it would be appropriate to certify that question. In Grandison v. Canada (Minister of Citizenship and Immigration)[13], Mr. Justice Strayer wrote at paragraph 5 of his reasons:
Not only is this position, that there can be no appeal of an interlocutory order in such proceedings without a question being certified, supported more clearly by the jurisprudence, it also appears to be more consistent with the purpose of subsection 83(1) of the Immigration Act. The obvious purpose of present sections 82.1 to 84 of the Immigration Act was to reduce the number of frivolous applications for judicial review and appeals from decisions in such cases. Subsection 83(1) was intended generally to make final the decision of the Trial Division, but allowed for the hearing of appeals on important issues which transcended the particular case. The obvious intent was to allow this Court to deal with, but only with, such issues as required to give the Trial Division general guidance where otherwise there might be inconsistencies between the judges of the Trial Division on a "serious question of general importance". This clearly implies that appeals were not to be taken on issues peculiar to a given case such as procedural matters. Thus the limitation on the appeals of a "judgment" in subsection 83(1) must be taken to cover by implication all orders incidental to such a judgment.
[32] While my decision on the issues before me on this application for judicial review will clearly not be dispositive on the ultimate issue before the Adjudicator, it will equally clearly be dispositive on the issue of the Adjudicator's jurisdiction. Thus, my decision will be a "final decision" on a question that I am satisfied is a serious question of general importance. Further, in the light of what I consider to be the uncertainty arising from the decisions of this Court, at both levels, in Figueroa, a decision of the Court of Appeal on an appropriate certified question arising out of my decision would give "...general guidance where otherwise there might be inconsistencies between the judges of the Trial Division on a "serious question of general importance".
[33] These reasons will issue without, for the present, a corresponding order. Counsel will have seven (7) days from the date of service of these reasons upon them to serve and file submissions with respect to certification of a question. An additional period of three (3) days from the date of service of these submissions will be provided to the opposite party so that either party may serve and file reply submissions. Thereafter, an order will issue dismissing this application for judicial review as earlier provided in these reasons.
________________________________
J. F.C.C.
Ottawa, Ontario
February 14, 2002
SCHEDULE
By this ruling, a procedure will be established for the inquiry of Jamie Carrasco Varela based on the Federal Court decision, Trial Division, of Rony Danilo Figueroa and The Minister of Citizenship and Immigration. Mr. Justice Pinard J. stated at page 7 of this decision, "In my opinion, a finding that a refugee is excluded from the protection of the Convention under paragraph 1F(a) demonstrates that the first part of the test under paragraph 19(1)(j) of the Act has been fulfilled." It is argued by counsel for the Immigration department that the Figueroa decision is binding on me, that I must abide by the aforementioned comment and conclude that the first part of the test for paragraph 19(1)(j) has been met for the decision of this inquiry. Mr. MacIntosh acknowledges that the second prong of this allegation is not established by the exclusion clause, being if the subject's acts constitute an offence under Canadian law.
I readily appreciate the significance of jurisprudence established by any superior court and its binding effect on Adjudicators for decisions at inquiries and detention reviews. If I accept as merit worthy however the arguments advanced by counsel for the Minister of Citizenship and Immigration, it would seem that the ruling in Figueroa is in conflict with a decision of this same court in the case of Minister of Citizenship and Immigration and Jose Adalberto Salinas-Mendoza. Mr. Justice Neol J. made the following statements in this decision which demonstrate my concerns: "I have concluded that the order of the Adjudicator releasing the respondent from custody should be quashed, and that the matter should be sent back for rehearing before the different adjudicator. In my view, the Adjudicator abdicated her role in some essential aspects in the face of the decision of the Provincial Court of British Columbia to release the respondent, pending the hearing of the sexual assault charge laid against him. If, as the Adjudicator indicated, she was satisfied that the terms of the release ordered by the provincial court made it unlikely that the respondent would pose a danger to the public, she, at the very least, had to make those terms part of the order which she issued in the purported exercise of her jurisdiction under the Immigration. This error is symptomatic of a more fundamental error, namely the excessive deference which the Adjudicator exhibited towards the decision of the provincial court and the consequential failure, on her part, to focus on the specific authority which she was called upon to exercise. Properly understood, while his decision was of interest to the Adjudicator, it had little relevance to the particular decision which she had to make in the context of the review proceeding before her. In my view, the Adjudicator committed a reviewable error in treating the decision of Judge Smyth as determinative of the issue which she had to decide. She committed a further error in deferring to his decision in the belief that he was more apt, or better positioned jurisdictionally, to assess the potential risk to the public. In so doing, she failed to bring her own independent mind to bear on the issue which she had to decide."
I acknowledge that the decision of Salinas-Mendoza differs from that of Figueroa, the first being a detention review under the Immigration Act and the second an administrative decision by an immigration officer on an application for landing. This inquiry is also distinguished from the aforementioned. What is clear however, from the judge's comments in Salinas-Mendoza is the independence of the adjudicator, the necessity to base all decisions strictly on the evidence and to not abdicate this responsibility in any manner. Thus, to accept the argument advanced by Mr. Macintosh, I must be able to reconcile the ruling in the Figueroa decision with that of Salinas-Mendoza by reference to the issue of Figueroa, the context in which the comments for that decision are made and a discussion of case law.
The issue of Figueroa is a decision rendered the 24 February 1999 by Gilles Deslauriers, an immigration officer with Citizenship and Immigration Canada, denying landing to the applicants because one of the persons included in the application is a person described in paragraph 19(1)(j) of the Immigration Act.
After carefully analyzing the Figueroa decision, I am of the view that all comments are made only in the context of an immigration officer's authority under the Act. Mr. Justice Pinard J., in addressing paragraphs 19(1)(j) and subsection 46.04(3) states "In fact, the language of subsection 46.04(3) of the Act is clear and expressly gives the immigration officer the power to grant landing to any applicant and to any dependent for whom landing is sought if he is satisfied that neither the applicant nor any of those dependents is a person described in, for example, paragraph 19(1)(j) of the Act. In the instant case, the decision at issue refers only to the application for permanent residency made by the applicant wife and in no way constitutes a removal order. The power of decision granted an immigration officer under subsection 46.04(3) of the Act is not implicit but express and clearly defined by the provision which, moreover, contains no expression of any intention by Parliament to involve an adjudicator as well."
There is also reference in Figueroa to the Federal Court decision of Kaisersingh et al. v. Canada wherein the distinction is made between an application for permanent residence and a process for removing a person from Canada. According to this decision, to remove an applicant from Canada, an inquiry will have to be undertaken and the adjudicator will have to agree that the applicants are not entitled to remain in Canada. This however does not mean that the immigration officer was without jurisdiction to make a decision in the context of reviewing and deciding the applicants application for admission.
Given the aforementioned, I must conclude that the judge's comment on page 7 paragraph 15 of the Figueroa decision is also made in the same context indicated above. Mr. Justice Pinard discusses, in the remaining paragraphs, the determination of the Refugee Division, reasons of its finding that the male applicant was subject to the 1F(a) exclusion clause, and that no application had been made to the court in opposition to this decision. In Figueroa, it is never understood from comments of Mr. Justice Pinard that a nexus exists between the authority of an immigration officer and an adjudicator under the Act. Finally, the evidence for deciding the second prong of the 19(1)(j) test is addressed to confirm the reasonableness of the immigration officer's decision and to justify dismissing the application for judicial review.
What remains to be considered is the impact of case law on the arguments advanced by the Minister's representative.
In my view, the jurisprudence before this hearing does not support the position of Mr. MacIntosh. As I understand this case law, it addresses primarily questions of law. For example, in the Federal Court decisions of "Moreno vs. Canada" and "Ramirez and The Minister of Employment and Immigration" the essential elements of paragraph 19(1)(j) are analyzed and rulings are made for them to be properly interpreted. Also understood is that because of the principles of "stare decisis" and "judicial comity" courts of equal superiority will usually be in agreement with decisions relating to questions of law to maintain consistency within the judicial process. The Federal Court decision of "Mansour Ahani and the Minister of Citizenship and Immigration" is another example of this principle.
It is clear from the Figueroa decision, that the immigration officer's mandate for subparagraph 46.04(3) of the Act is to determine administratively only questions of fact. The options available to this officer under this provision are to grant landing to the applicant or to deny this privilege based strictly on information available to him. An adjudicator of Immigration law, on the other hand, in deciding an allegation for an inquiry, must consider both questions of law and fact. The alleged crimes against humanity of Mr. Carrasco Varela involve primarily questions of fact to be resolved. It cannot be argued that evidence of this nature may not be amended from one moment in time to the next. This explains how a person convicted of offences 10 years ago can be exonerated at future proceedings. It is equally true that decisions turn on an assessment of credibility or on who is the presiding at the hearing. In other words, evidence involving questions of fact may be analyzed and determined from opposite perspectives by various decision makers. If the person concerned is denied an opportunity at this inquiry of responding to paragraph 19(1)(j) of the Immigration Act, I, as the decision maker, am placed in same position as the immigration officer under subparagraph 46.04(3). An independent assessment of evidence will be unavailable to me. I will likely be obligated to issue a deportation order to the subject based on a decision of the Refugee Division, which I may or may not be in agreement with. Proceeding in this fashion could jeopardize Mr. Varela's section 7 Charter right, specifically, the right to life, liberty and security of the person, and the right not to be deprived thereof except by an application of the principles of fundamental justice.
In conclusion, I am compelled to reject the arguments of counsel for the Minister of Citizenship and Immigration. In my view, to rule otherwise, would bring the administration of justice for this inquiry into disrepute. I also query why the Immigration department would compromise it's position at the inquiry of Jaime Carrasco Varela by the submissions made in accordance with the Figueroa decision. Notwithstanding this concern however, evidence, may be presented in any manner deemed appropriate. If it is believed that the decision of the Refugee Division suffices for the same ruling to be made concerning the first segment of paragraph 19(1)(j) of the Act, counsel for the Minister may choose to rely strictly on documentary evidence before this inquiry which has been provided in disclosure. I, on the other hand, will permit the presentation of all evidence relevant to paragraph 19(1)(j), as I am required to do under the authority of the Act.
[1] (2001), 181 F.T.R. 242.
[2] R.S.C. 1985, c. I-2.
[3] R.S.C., c. C-46.
[4] R.S.C. 2000, c. 24.
[5] [2001] F.C.J. No. 589 (F.C.A.), online: QL (FCJ); 2001 FCA 112.
[6] Ruth Sullivan, Driedger on the Construction of Statutes, 3rd ed. (Toronto and Vancouver: Butterworths, 1994) at 526.
[7] R.S.C. 1985, c. I-21.
[8] [2002] S.C.C. 3, January 11, 2002.
[9] See, for example, section 40.2 of the Act.
[10] For a strong statement of the jurisdiction of an Adjudicator, subject to section 40.2, see subsection 80.1(1) of the Act.
[11] (1990), 47 Admin. L.R. 317 (F.C.A.).
[12] [1978] 1 S.C.R. 369.
[13] (2000), 8 Imm. L.R. (3d) 130 (F.C.A.).