Date: 19991112
Docket: IMM-2394-99
Ottawa, Ontario, this 12th day of November, 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
NIRANJAN CLAUDE FABIAN and SHANKRI FABIAN
by her litigation guardian Nilanthi Kanathasan
Plaintiffs
- and -
HER MAJESTY THE QUEEN
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendants
REASONS FOR ORDER AND ORDER
[1] Niranjan Claude Fabian was born in Sri Lanka in 1969. He came to Canada on June 25, 1990 and made a refugee claim, which was granted on March 21, 1991. He became a permanent resident of Canada on February 24, 1995.
[2] On March 25, 1998, Mr. Fabian was convicted of three criminal offenses: conspiring to commit an indictable office (forgery of a Canadian passport), conspiring to commit an assault causing bodily harm, and attempting to obstruct justice. He was sentenced to consecutive terms of imprisonment totalling 16 months. The sentencing judge said:
| [...] in order to assess the criminality of Mr. Fabian's activities and to assess a proper sentence, I must consider that he was prepared in order to protect his interest in the illicit trade of passports, to go so far as to resort to violence, in which innocent third parties could have been harmed. The full extent of his criminal activities and his criminal mind set discloses very little respect for the law. |
[3] The arrest and conviction of Mr. Fabian resulted in some publicity in the Toronto papers in which Mr. Fabian was identified as a member of VVT, said to be a criminal Tamil gang and a rival of another criminal Tamil gang named AK Kannon. A newspaper in Colombo reproduced some of the information from the Canadian papers.
[4] Counsel for Mr. Fabian submits that Mr. Fabian has also been publicly but falsely identified as a member or former member of the Liberation Tigers of the Tamil Elam, or L.T.T.E. The fact that he has been so identified is evidenced by an affidavit submitted by the Minister in this proceeding, which has attached an excerpt from a 1998 report by the Metropolitan Toronto Police on Tamil organized crime. Whether the allegations in that report are true is in dispute, but I accept that they were made and that they were publicized to some degree.
[5] Mr. Fabian's convictions resulted in a report dated April 2, 1998 concluding that Mr. Fabian as a person referred to in paragraph 27(1)(d). The report is based on the undeniable fact that he was convicted of an offence for which a term of imprisonment of more than six months has been, or five years or more may be, imposed.
[6] A report under paragraph 27(1)(d) may ultimately result in deportation. However, subsections 53(1) and 70(3) of the Immigration Act give Convention refugees special relief from the prospect of deportation.
[7] Subsection 53(1) generally precludes the deportation of a Convention refugee to a country where his life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion. However, there are a number of exceptions. One exception is paragraph 53(1)(d), which applies to a person described in paragraph 27(1)(d) if the Minister is of the opinion that the person is a danger to the public in Canada.
[8] Subsection 70(3) provides that a Convention refugee against whom a deportation order has been made may appeal to the Appeal Division to vacate or stay the deportation order on any question of law or fact, or on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada. Again, however, there are exceptions. Paragraph 70(5)(c) denies that right of appeal to a person described in paragraph 27(1)(d) if the Minister is of the opinion that the person is a danger to the public in Canada.
[9] After the determination was made that Mr. Fabian is a person described in paragraph 27(1)(d), he was advised, by letter dated May 12, 1998, that a danger opinion was under consideration. He was given an opportunity to make written submissions, which he did through counsel. The submissions of Mr. Fabian's counsel dealt with a number of matters, including the circumstances of the offences, the prospects for rehabilitation, the potential danger faced by Mr. Fabian if he were returned to Sri Lanka, the hardship that his wife and five year old child would suffer in that event, and the degree of community support available to him in Canada.
[10] The submissions of Mr. Fabian's counsel were considered by the reviewing officer and commented on in her report to the Minister's delegate. The reviewing officer also considered a number of public documents relating to Sri Lanka, and documents relating to Mr. Fabian's refugee claim and his criminal offences, including the comments of the sentencing judge referred to above. The report of the reviewing officer states:
| [...] it is likely that Mr. Fabian may experience harsh or inhuman treatment upon his return to Sri Lanka by Government authorities as described in the country report. I have taken into consideration Canada's obligations under the Convention against Torture and believe that, notwithstanding this, the risks that Mr. Fabian represents to the Canadian public as a result of the nature and seriousness of his criminal involvement in Canada far outweigh his risks upon return to Sri Lanka. |
[11] On August 25, 1998, a delegate of the Minister rendered an opinion that Mr. Fabian is a danger to the public in Canada. As a consequence, Mr. Fabian is at risk of being deported to Sri Lanka, the country from which he sought refuge in 1990, and he is not entitled to apply to the Appeal Division for relief on the basis of compassionate or humanitarian considerations.
[12] On September 14, 1998, Mr. Fabian applied for leave to commence an application for judicial review with respect to the danger opinion. The execution of the deportation order was stayed by McGillis J. pending that application. It appears that at least part of the factual basis for the judicial stay related to material provided by the Minister that had not previously been disclosed to counsel for Mr. Fabian. In addition to granting the stay, McGillis J. permitted the leave application to be amended to deal with that additional material.
[13] The amended leave application was filed on February 5, 1999. A response to the amended leave application was filed on behalf of the Minister on February 26, 1999. The leave application was dismissed on April 14, 1999. No Charter issues had been raised in the initial leave application or the amended leave application.
[14] The dismissal of the leave application removed any statutory bar to the execution of the deportation order against Mr. Fabian. I assume that the proposed destination is Sri Lanka. Mr. Fabian's application is apparently based on that premise and the Minister has not suggested that any other destination is under consideration or is possible.
[15] Mr. Fabian and his minor child Shankri Fabian commenced this proceeding on May 11, 1999 by filing a Statement of Claim. They argue that the provisions of the Immigration Act used to effect Mr. Fabian's removal from Canada, and the deportation process employed by officials of the Ministry of Citizenship and Immigration, are of no force and effect because they breach the plaintiffs' rights under section 7 of the Charter of Rights and Freedoms. They seek to enjoin the Minister from removing Mr. Fabian from Canada until his circumstances have been considered in a manner that conforms with the Charter. The Minister filed a Statement of Defence on June 25, 1999.
[16] On June 11, 1999, this application was made by Mr. Fabian and his child for an interlocutory injunction against the execution of the deportation order pending the disposition of their Charter claims.
[17] This application for an interlocutory injunction can succeed only if three conditions are met. First, the Statement of Claim must disclose a serious issue to be tried. Second, it must be established that Mr. Fabian and his child will suffer irreparable harm if the injunction is not granted. Finally, the balance of convenience must favour Mr. Fabian and his child, in the sense that the potential harm to them if the injunction is not granted outweighs any potential harm to the Minister if the injunction is granted: Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.); American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396. In an application for a stay of execution of a deportation order, the interest of the Minister must be understood as a surrogate for the public interest.
[18] The Charter issues raised in the Statement of Claim appear to be substantially the same as the issues that are now before the Federal Court of Appeal in Suresh v. Canada (Minister of Employment and Immigration), Court File No. A-415-99. The Suresh appeal has been heard and is under reserve. Counsel for Mr. Fabian argued that this is sufficient to establish that there is a serious question to be tried.
[19] However, the matter is not as simple as that. It is argued for the Minister that Mr. Fabian is barred from raising these Charter issues because he could have done so in the context of his application for leave and judicial review of the danger opinion. This argument is essentially a plea of res judicata, a doctrine that is usefully summarized in Thomas v. Trinidad and Tobago (Attorney General) (1990), 115 N.R. 313 (P.C.) at 316-317:
| The principles applicable to a plea of res judicata are not in doubt and have been considered in detail in the judgment of the Court of Appeal. It is in the public interest that there should be finality to litigation and that no person should be subjected to action at the instance of the same individual more than once in relation to the same issue. The principle applies not only where the remedy sought and the grounds therefor are the same in the second action as in the first but also where, the subject matter of the two actions being the same, it is sought to raise in the second action matters of fact or law directly related to the subject matter which could have been but were not raised in the first action. The classic statement on the subject is contained in the following passage from the judgment of Wigram, V.C., in Henderson v. Henderson (1843), 3 Hare 100, at page 115: |
| ". . . where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." |
| The principles enunciated in that dictum have been restated on numerous occasions of which it is sufficient to mention only three. In Hoystead v. Commissioner of Taxation, [1926] A.C. 155, Lord Shaw of Dunfermline, at page 165, in delivering the opinion of the Board said: |
| "Parties are not permitted to begin fresh litigations because of new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except when legal ingenuity is exhausted." |
| In Greenhalgh v. Mallard, [1947] 2 All E.R. 255, Somervell, L.J., at page 257 said: |
| "I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subjectmatter [sic] of the litigation and so clearly could have been raised that it would be an abuse of process of the court to allow a new proceeding to be started in respect of them." |
| In Yat Tung Co. v. Dao Heng Bank, [1975] A.C. 581, Lord Kilbrandon, at page 590, in delivering the opinion of the Board referred to the above quoted passage in the judgment of Wigram, V.C., and continued: |
| "The shutting out of a `subject of litigation' - a power which no court should exercise but after a scrupulous examination of all the circumstances - is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless `special circumstances' are reserved in case justice should be found to require the nonapplication of the rule." |
[20] This excerpt from the Thomas case was adopted by the Federal Court of Appeal in Her Majesty the Queen v. Chevron Canada Resources Limited, [1999] 1 F.C. 349 at 367 (F.C.A.).
[21] It follows that if the Charter issues raised in the Statement of Claim were an integral part of the litigation that was or should have been before the Court in the leave application relating to the danger opinion, Mr. Fabian should be precluded from raising them now unless there are special circumstances that excuse the failure to do so.
[22] Counsel for Mr. Fabian argues that he could not have raised the Charter issues in the context of the leave application. He says that in September of 1998 (when the leave application was first filed) and in February of 1999 (when the amended leave application was filed), this Court had determined that the constitutionality of the danger opinion provisions could not be raised in an application for judicial review: Gwala v. Canada (Minister of Citizenship and Immigration), [1998] 4 F.C. 43 (F.C.T.D.), rendered May 25, 1998, and Said v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 592 (F.C.T.D.) rendered February 11, 1999. He says that it is only recently that the Federal Court of Appeal has determined that such legislation can be challenged on Charter grounds in an application for judicial review: Gwala v. Canada (Minister of Citizenship & Immigration), [1999] 3 F.C. 402 (F.C.A.), rendered May 21, 1999, followed in Suresh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 865 (QL) (F.C.T.D.) rendered June 11, 1999.
[23] I doubt that the state of the law in February of 1999 was such that the substantive Charter issues set out in the Statement of Claim could not have been raised in the leave application in this case, even if the remedy sought was something short of a declaration that the legislation is invalid. A number of cases decided well before these proceedings dealt with the issue of the constitutionality of a danger opinion. I need only refer to Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (F.C.A.) and Raza v. Canada (Minister of Citizenship and Immigration), [1999] 2 F.C. 185 (F.C.T.D.), rendered December 14, 1998.
[24] However, the applicability of res judicata in this situation is sufficiently unclear that I will assume, without deciding, that in this case there may be special circumstances that could defeat the Minister's plea of res judicata.
[25] I accept the argument of counsel for Mr. Fabian that there is a serious question to be tried. I base this conclusion on the pending decision in Suresh v. Canada (Minister of Employment and Immigration), Court File No. A-415-99.
[26] I also accept that there is a risk of irreparable harm to Mr. Fabian if he is deported to Sri Lanka. The conclusions of the reviewing officer cited above, combined with the evidence of the human rights record of Sri Lanka, are sufficient to establish that. In this regard I rely also on the following comments of Robertson J.A., who granted an application to stay the execution of the deportation order in the Suresh case (see Suresh v. Canada (Minister of Citizenship and Immigration) (1999), 176 D.L.R. (4th) 296 at paragraphs 12 - 17):
| ... it is difficult to speculate on the fate that may await a person who is to be deported to a country whose human rights record falls below international or Canadian standards. I have always found it difficult to accept that when the House of Lords formulated the tripartite test in its seminal decision of American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, consideration was ever given to its applicability in the human rights context. It is only in a commercial context such as that which presented itself in American Cyanamid that any court would characterize irreparable harm in terms of that which cannot be compensated in monetary terms. No transgression of a basic human right can be accurately measured or compensated by money. This is particularly true in immigration cases involving deportation to a country which fails to abide by international norms respecting human rights. Nevertheless, it is equally true that there is no absolute right to remain in Canada, particularly for those whom the Minister has reasonable grounds to believe are terrorists or active supporters of terrorism. Ultimately, the balance of convenience may have to favour the public interest over the interests of a person who is to be deported to a country where human rights abuses exist. However, it is not necessary at this stage to dwell on the fate that may await Mr. Suresh if he is returned to Sri Lanka, for there is an alternate basis upon which to find that he will suffer irreparable harm if his stay application is not granted. |
| [13] Clearly, the issue of irreparable harm can be answered in one of two ways. The first involves an assessment of the risk of personal harm if a person is deported or deported to a particular country. The second involves an assessment of the effect of a denial of a stay application on a person's right to have the merits of his or her case determined and to enjoy the benefits associated with a positive ruling. |
| [14] The alternative argument advanced by counsel for Mr. Suresh is that his pending appeal will be rendered "moot" or "nugatory" if he is deported prior to the hearing of his appeal. Assuming that Mr. Suresh is deported and detained in Sri Lanka prior to that proceeding, and assuming that he is successful on appeal, Mr. Suresh's successful constitutional challenge would be a hollow victory, since the Sri Lankan authorities would be unlikely to release him and, therefore, he would be unable to avail himself of the fruits of his victory, most likely, the right to remain in Canada until such time as his case is disposed of in accordance with the Charter. Were he to remain in Canada and be successful on his appeal, I take it for granted that the Minister would be unable to act on the deportation order. |
| [...] |
| [17] Subject to the balance of convenience factor, it seems to me that appellants such as Mr. Suresh are entitled to have their day in court before being deported. [...] These cases raise serious Charter issues relating to a complex scheme for removing persons from this country and the possibility that they would be exposed to inhumane treatment on arriving in their former homeland. Until such issues are decided, it is only just that the appellants such as Mr. Suresh be allowed to remain in Canada. While there may be instances in which a person can return to Canada following deportation and a successful appeal, this is not one of those cases. |
[27] However, I am not persuaded that the balance of convenience favours Mr. Fabian. Mr. Fabian's personal security must be balanced against the interest of the public, as represented by the Minister, in public safety.
[28] In this regard, the facts are distinguishable from those of Suresh. In Suresh, there was no evidence that the applicant had committed any acts of violence in Canada. The Minister was seeking to deport Mr. Suresh because of his association with an organization that was involved in acts of terrorism in another country. On those facts Robertson J.A. found that the balance of convenience favoured Mr. Suresh. The facts of this case are quite different. It is not disputed that Mr. Fabian has committed acts of violence in Canada, and that his criminal activities relate to his membership in a criminal gang in Canada.
[29] I have not disregarded the argument of counsel for Mr. Fabian that there is an independent claim that the Charter rights of Mr. Fabian and his child are engaged by the prospect of their forced separation by government action. This claim is based on an argument that involves some extension of two recent decisions of the Supreme Court of Canada: Baker v. Canada (Minister of Citizenship and Immigration) (July 9, 1999), No. 25823 and New Brunswick (Minister of Health and Community Services) v. G. (J.) (September 10, 1999), No. 26005. In the latter case, the following appears at paragraphs 61 to 64:
| 61 I have little doubt that state removal of a child from parental custody pursuant to the state's parens patriae jurisdiction constitutes a serious interference with the psychological integrity of the parent. The parental interest in raising and caring for a child is, as La Forest J. held in B. (R.), supra, at para. 83, "an individual interest of fundamental importance in our society". Besides the obvious distress arising from the loss of companionship of the child, direct state interference with the parent-child relationship, through a procedure in which the relationship is subject to state inspection and review, is a gross intrusion into a private and intimate sphere. Further, the parent is often stigmatized as "unfit" when relieved of custody. As an individual's status as a parent is often fundamental to personal identity, the stigma and distress resulting from a loss of parental status is a particularly serious consequence of the state's conduct. |
| 62 In Mills v. The Queen, [1986] 1 S.C.R. 863, at pp. 919-20, a case dealing with the s. 11(b) right to be tried within a reasonable time, I found that the combination of stigmatization, loss of privacy, and disruption of family life were sufficient to constitute a restriction of security of the person: |
| . . . security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation". . . These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. |
| As I have noted, these are precisely the same consequences arising from the state's conduct in this case. |
| 63 Not every state action which interferes with the parent-child relationship will restrict a parent's right to security of the person. For example, a parent's security of the person is not restricted when, without more, his or her child is sentenced to jail or conscripted into the army. Nor is it restricted when the child is negligently shot and killed by a police officer: see Augustus v. Gosset, [1996] 3 S.C.R. 268. |
| 64 While the parent may suffer significant stress and anxiety as a result of the interference with the relationship occasioned by these actions, the quality of the "injury" to the parent is distinguishable from that in the present case. In the aforementioned examples, the state is making no pronouncement as to the parent's fitness or parental status, nor is it usurping the parental role or prying into the intimacies of the relationship. In short, the state is not directly interfering with the psychological integrity of the parent qua parent. The different effect on the psychological integrity of the parent in the above examples leads me to the conclusion that no constitutional rights of the parent are engaged. |
[30] These authorities do not, by themselves, support the proposed Charter claim, but a Court might be persuaded to extend them as counsel for Mr. Fabian would argue.
[31] The record is sparse on the question of what harm might be suffered by Mr. Fabian's child if they are separated. I cannot conclude that the potential risk of harm to Mr. Fabian and his child if they are separated is sufficient to overcome Mr. Fabian's criminal history in Canada. In so far as the application for a stay is based on the claim that the separation of Mr. Fabian from his child is a breach of a Charter right, it too must fail on the basis that the balance of convenience favours the Minister.
[32] The application for a stay of the execution of the deportation order is dismissed.
"Karen R. Sharlow"
Judge