2003 FCT 362, 2003 FCT 362

IMM-1254-02 2003 FCT 362 Mysay Bouttavong ( Applicant ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Bouttavong v. Canada (Minister of Citizenship and Immigration) (T.D.) Trial Division, O'Keefe J.--Winnipeg, October 21, 2002; Ottawa, March 27, 2003.

Practice -- Mootness -- Application for judicial review of danger opinion -- Permanent resident convicted of serious offences, sentenced to three years' imprisonment -- Deportation ordered -- Minister's position: application moot in view of new legislation whereunder applicant ineligible to make refugee claim, without right of appeal to Immigration Appeal Division -- Teaching of S.C.C. in Borowski v.

Canada (Attorney General) followed -- Two-step analysis -- Whether tangible concrete dispute disappeared -- If answer "yes", should Court, even so, exercise discretion to hear case -- Relevant statutory provisions considered -- Under new legislation, danger opinion concept replaced by one of serious criminality -- On facts of case, law as now stands, even if applicant successful herein, remaining ineligible to have claim determined or to appeal -- Court would not exercise discretion, no live controversy remaining, no collateral consequences providing adversarial context -- Not case of recurring nature, no special circumstances justifying use of scarce judicial resources.

Citizenship and Immigration -- Exclusion and Removal -- Removal of Permanent Residents -- Laos native came to Canada in 1991 as government-sponsored displaced person -- Became permanent resident -- In 2000, convicted of trafficking in cocaine, contrary to Controlled Drugs and Substances Act and obtaining sexual services of juvenile prostitute, contrary to Criminal Code -- Three-year sentence imposed -- Minister's delegate forming opinion applicant danger to public -- Deportation ordered -- MCI arguing judicial review application moot due to coming into force of Immigration and Refugee Protection Act which replaced Immigration Act -- Applicant now ineligible to make refugee claim, having no right of appeal to Immigration Appeal Division -- Danger opinion concept replaced by one of serious criminality (convicted of offence punishable by 10 years' or more imprisonment or receiving sentence exceeding 6 months) -- Even if successful herein, applicant still ineligible to have claim determined by Refugee Protection Division -- Application not entertained as moot.

The sole issue argued upon this application for the judicial review of a decision by the Minister's delegate that applicant was a danger to the public was whether it was moot. Applicant, a Laos native, came to Canada in 1991 as a government-sponsored displaced person. While he became a permanent resident, he is not a citizen. In 2000, applicant was convicted of two offences: trafficking in cocaine and obtaining, for consideration, the sexual services of a juvenile prostitute. He was involved at a "crack house" where, on two occasions, he had intercourse with a 14-year-old girl in return for crack cocaine.

He was sentenced to three years' imprisonment. In April, 2001 an immigration officer signed a

section 27 report reporting these convictions to the Deputy Minister of Citizenship and Immigration. Applicant was then notified of an intention to seek the Minister's opinion under subsection 70(5) and subparagraph 46.01(1)( e )(iv) of the Immigration Act that he constituted a public danger. Following the usual steps in the process, a delegate of the Minister indicated having formed the opinion that applicant was indeed a danger and applicant was so advised in writing. In April 2002, applicant's deportation was ordered subsequent to an inquiry.

He was scheduled for an interview with regard to his Convention refugee claim. The Minister's position was that this application became moot with the coming into force of the Immigration and Refugee Protection Act ( IRPA ), on June 28, 2002. It was argued that, under sections 64 and 101, applicant is ineligible to make a refugee claim and does not have a right of appeal to the Immigration Appeal Division. Whether the Minister erred in reaching the danger opinion is now a mere academic question.

The Minister accordingly suggests that the matter is moot and that this Court ought not exercise its discretion to entertain this application. Held , the application is moot and the Court declined to exercise its discretion to hear it. In any consideration of mootness, reference had to be made to the teaching of the Supreme Court in Borowski v. Canada (Attorney General) which confirmed the approach in recent cases of conducting a two-step analysis to determine whether a present live controversy exists which affects the rights of the parties.

It has first to be determined whether the required tangible, concrete dispute has disappeared so that the issues have become academic. Secondly, if the answer is "yes", the Court must decide whether, even so, it should exercise its discretion to hear the case. In the initial step of the analysis, the relevant statutory provisions had to be considered. Under Immigration Act , subsection 46.01(1), a person found to constitute a public danger is ineligible to have his claim determined by the Refugee Division.

Subsection 70(5) of the same statute provides that one found to be a danger may not appeal a deportation order or conditional deportation order to the Appeal Division. Under the new legislation--the IRPA--the concept of a finding of danger to the public in Canada has been replaced by the concept of serious criminality: subsection 36(1) of the IRPA provides that a permanent resident or foreign national is inadmissible on grounds of serious criminality if here convicted of an offence punishable by imprisonment for at least 10 years or if sentenced to a term of more than six months. Under

section 101, a claim is not ineligible for referral to the Refugee Protection Division on account of serious criminality unless the offence of which convicted is punishable by a maximum sentence of at least 10 years and for which a sentence of at least two years was imposed. On the trafficking conviction, applicant could have received a life sentence but was sentenced to a term of three years. That means that, even were he successful upon this application, he would remain ineligible to have his claim determined by the Refugee Protection Division. And, under

section 64 of the IRPA , he would have no right to appeal to the Immigration Appeal Division. In the result, the question whether applicant is a public danger has become academic and the matter is moot. Turning to the second issue, two of the three factors that Borowski taught as having to be considered by a court in deciding whether it

should exercise its discretion, went against hearing this application. First, with the coming into force of the IRPA , no live controversy remains. Nor are there any collateral consequences of the outcome that would provide the necessary adversarial context. As for the second factor to be considered, there were here no special circumstances that would justify the use of scarce judicial resources in entertaining this application. There was nothing to suggest that this case is of a recurring nature.

Thirdly, for a court to pronounce a judgment in the absence of a dispute affecting the rights of parties could be perceived as an intrusion into the domain of the legislative branch. That is, however, not a problem in the case at bar as the Court would be exercising its traditional role. But, in Borowski , Sopinka J. noted that all three factors may not support the same conclusion. In any event, the decision of the Court was to not exercise its discretion to hear this application. statutes and regulations judicially considered Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(1) , (3) ( a ), Sch.

I, item 2. Criminal Code , R.S.C., 1985, c. C-46, s. 212(4) (as am. by S.C. 1999, c. 5, s. 8). Immigration Act , R.S.C., 1985, c. I-2, ss. 46.01(1)( e ) (as am. by S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9), 70(5) (as am. by S.C. 1995, c. 15, s. 13). Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 36 , 64 , 101 , 112 , 113 , 114 . Immigration and Refugee Protection Regulations , SOR/2002-227, s. 350(1) , (2) . cases judicially considered followed: Borowski v. Canada (Attorney General) , 1989 CanLII 123 (SCC) , [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask.

R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110. APPLICATION for judicial review of the decision of a delegate of the Minister of Citizenship and Immigration that applicant was a danger to the public. Application not entertained as moot. appearances: David Matas for applicant. Sharlene Telles-Langdon for respondent. solicitors of record: David Matas , Winnipeg, for applicant. Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by [ 1 ]O'Keefe J.: This is an application for judicial review of a decision of a delegate of the Minister of Citizenship and Immigration finding the applicant to be a danger to the public in Canada pursuant to subsection 70(5) [as am. by S.C. 1995, c. 15, s. 13] and paragraph 46.01(1)( e ) [as am. by S.C. 1992, c. 49, s. 36; 1995, c. 15, s. 9] of the Immigration Act , R.S.C., 1985, c.

I-2, as amended. [ 2 ]At the commencement of the hearing, the parties agreed to argue only the issue of mootness of the application. [ 3 ]The applicant seeks an order of certiorari quashing the decision that he constitutes a danger to the public in Canada. Background [ 4 ]The applicant, Mysay Bouttavong was born in Laos. On April 16, 1991 he came to Canada as a government-sponsored displaced person. He became a permanent resident.

He is not a Canadian citizen. [ 5 ]On November 27, 2000, the applicant was convicted of trafficking in cocaine contrary to subsection 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 and of unlawfully obtaining for consideration the sexual services of a person under the age of 18 years (juvenile prostitution) contrary to subsection 212(4) [as am. by S.C. 1999, c. 5, s. 8] of the Criminal Code , R.S.C., 1985, c. C-46 . [ 6 ]The applicant's convictions stemmed from his involvement in a "crack house".

At the house, girls between the ages of approximately 12 and 15 were befriended by older men and invited to use crack cocaine. Initially, the crack cocaine was supplied without conditions. Once the girls became addicted, the men would demand sexual acts in exchange for the drug.

The applicant was 40 years old when he engaged, on two occasions, in sexual intercourse with a 14 year-old girl in exchange for crack cocaine. [ 7 ]For his two convictions, the applicant was sentenced to two, three-year terms of incarceration to run concurrently, commencing November 27, 2000. [ 8 ]On April 5, 2001, Debbie Jacobucci, an immigration officer at the Ministry of Citizenship and Immigration in Winnipeg, Manitoba, signed a "Report under

Section 27 of the Immigration Act ", reporting the convictions of the applicant to the Deputy Minister of Citizenship and Immigration, and recommending an inquiry.

[ 9 ]By letter dated April 17, 2001, the applicant received "Notice of intention to seek the opinion of the Minister pursuant to subsection 70(5) and subparagraph 46.01(1)( e )(iv) of the Immigration Act that you are a danger to the public in Canada". [ 10 ]The letter, signed by John Nychek, manager of Citizenship and Immigration in Winnipeg, Manitoba, states: If the Minister is of the opinion that you are a danger to the public in Canada, under subsection 70(5) of the Immigration Act, you will not have a right to appeal a deportation order to the Immigration Appeal Division of the Immigration and Refugee Board and pursuant to subparagraph 46.01(1)(e)(iv) of the Act, if you have made or intend to make a refugee claim it will not be referred to the Convention Refugee Determination Division of the Immigration and Refugee Board for determination. [ 11 ]The letter provided a list of the material to be provided to the Minister for consideration and included a copy of the same material.

Two of the documents listed were resent on May 14, 2001 as they were originally missing the signature of the manager. The letter also invited the applicant to make submissions regarding whether or not he is a danger to the public, whether compelling humanitarian or compassionate considerations are present in his case and the extent to which his life or freedom would be threatened by removal from Canada. The applicant made submissions in response. [ 12 ]The letter, the accompanying material, and the applicant's submission were forwarded to the case management branch in Ottawa.

Debbie Jacobucci, immigration officer, and John Nychek, manager, at the Ministry of Citizenship and Immigration in Winnipeg, Manitoba, recommended that the Minister be asked for a public danger opinion. The recommendation was signed by Debbie Jacobucci on May 9, 2001 and by John Nychek on June 22, 2001. [ 13 ]On July 18, 2001 a "Request for Minister's Opinion" was prepared by an analyst. On July 19, 2001, a senior analyst indicted his concurrence with the recommendation to seek a danger opinion from the Minister.

This report was sent to the applicant who then made further submissions on October 15, 2001. [ 14 ]On February 15, 2002, a delegate of the Minister indicated that she had formed the opinion that the applicant constituted a danger to the public in Canada pursuant to subsection 70(5) and paragraph 46.01(1)(

e) of the Immigration Act , supra . By letter dated February 22, 2002, from immigration officer, Debbie Horoshok (formerly Jacobucci), the applicant was informed of this decision. [ 15 ]The Minister's opinion stated: In forming my opinion, I have considered the Ministerial Opinion Report and the documentary evidence presented by local Immigration officials to support their recommendation that Mysay BOUTTAVONG, born October 10, 1958, citizen of Laos, constitutes a danger to the public pursuant to subsection 70(5) and paragraph 46.01(1)(

e) of the Immigration Act , as well as the information contained in the Request for Minister's Opinion report dated July 19, 2001 and supporting material. I have also carefully considered the information received from the client/Counsel received May 7, 2001, including his final submissions dated October 15, 2001, which is addressed in the disclosure page, as well as any and all humanitarian and compassionate considerations that may exist in this case.

The information presented by the client/Counsel has failed to persuade me that the recommendation forwarded by local Immigration officials that Mysay BOUTTAVONG constitutes a danger to the public should not be followed in this case. I am satisfied that the Ministerial Opinion Report and the Request for Minister's Opinion adequately reflect the basis for my conclusion that Mysay Bouttavong constitutes a danger to the public in Canada. [ 16 ]On April 10, 2002 an inquiry was held and the applicant was ordered deported. The applicant filed a notice of appeal on April 10, 2002.

On April 19, 2002, the applicant was scheduled to have an interview with a senior immigration officer regarding his claim to be a Convention refugee. Applicant's Submissions [ 17 ]The applicant argued that this matter was moot and cited sections 112 to 114 of the IRPA [ Immigration and Refugee Protection Act , S.C. 2001, c. 27 ] in support of his argument. Respondent's Submissions [ 18 ]In the respondent's further memorandum of argument, the respondent submits that this application became moot on the coming into force of the IRPA on June 28, 2002.

First, the respondent submits there is no longer a live controversy or concrete dispute now that the IRPA has replaced the Immigration Act. Specifically, the respondent submits that pursuant to

section 64 and

section 101 of IRPA , the applicant is not eligible to make a refugee claim, and has no right of appeal to the Immigration Appeal Division. As such, the respondent submits whether the Minister erred in finding the applicant constitutes a danger to the public in Canada pursuant to paragraph 46.01(1)(

e) and subsection 70(5) of the Immigration Act is purely an academic question and is therefore moot. Second, the respondent submits the Court should not exercise its discretion to hear this judicial review application. [ 19 ] Issues 1. Is the matter moot? 2. If the matter is moot, should the Court exercise its discretion and hear the matter? Relevant Statutory Provisions [ 20 ]The relevant statutory provisions of the Immigration Act , state as follows: 46.01

(1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person

. . . (

e) has been determined by an adjudicator to be (

i) a person described in paragraph 19(1)(

c) or subparagraph 19(1)( c. 1)(

i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, (ii) a person described in paragraph 19(1)( e ), ( f ), ( g ), ( j ), (

k) or (

l) and the Minister is of the opinion that it would be contrary to the public interest to have the claim determined under this Act, (iii) a person described in subparagraph 27(1)( a. 1)(

i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, or (iv) a person described in paragraph 27(1)(

d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed and the Minister is of the opinion that the person constitutes a danger to the public in Canada. . . . 70. . . .

(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(

a) or (

b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be (

a) a member of an inadmissible class described in paragraph 19(1)( c ), ( c .1), ( c .2) or ( d ); (

b) a person described in paragraph 27(1)( a .1); or (

c) a person described in paragraph 27(1)(

d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. [ 21 ]The relevant statutory provisions of the IRPA state as follows: 36.

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under

an Act of Parliament for which a term of imprisonment of more than six months has been imposed; . . . 64.

(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. . . . 101.

(1) A claim is ineligible to be referred to the Refugee Protection Division if . . . (

f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)( c ).

(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(

f) unless (

a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or [ 22 ]The relevant statutory provisions of the Immigration and Refugee Protection Regulations , SOR/2002-227 state as follows: 350.

(1) Subject to subsections (2) and (3), if a decision or

an act of the Minister or an immigration officer under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before this

section comes into force, the determination shall be made in accordance with the Immigration and Refugee Protection Act .

(2) If the decision or act referred to in subsection (1) was made under paragraph 46.01(1)( e ), subsection 70(5) or paragraph 77(3.01)(

b) of the former Act and the Immigration and Refugee Protection Act makes no provision for the decision or act, no determination shall be made. [ 23 ]The relevant statutory provisions of the Controlled Drugs and Substances Act state as follows: 5.

(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person

to be such a substance.

(2) No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III or IV.

(3) Every person who contravenes subsection (1) or (2) (

a) subject to subsection (4), where the subject-matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life; . . .

(4) Every person who contravenes subsection (1) or (2), where the subject-matter of the offence is a substance included in

Schedule II in an amount that does not exceed the amount set out for that substance in

Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years less a day. . . .

SCHEDULE 1 . . . 2. Coca (Erythroxylon), its preparations, derivatives, alkaloids and salts, including:

(1) Coca leaves

(2) Cocaine (benzoylmethylecgonine)

(3) Ecgonine (3--hydroxy--2--tropane carboxylic acid) [ 24 ]The relevant statutory provisions of the Criminal Code , supra state as follows: 212. . . .

(4) Every person who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person who is under the age of eighteen years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Analysis and Decision [ 25 ] Issue 1 Is the matter moot? The respondent has submitted that the provisions of the IRPA have made the applicant's application moot. The decision under review was made pursuant to subsection 70(5) and paragraph 46.01(1)(

e) of the Immigration Act . [ 26 ]In any discussion of mootness, reference must be made to the Supreme Court of Canada decision of Borowski v. Canada (Attorney General) , 1989 CanLII 123 (SCC) , [1989] 1 S.C.R. 342. The Court stated at page 353: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties.

If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.

The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.

The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [ 27 ]Following this two-step procedure it is first necessary "to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic".

I will repeat certain of the relevant provisions of the legislation for ease of reference. [ 28 ]Subsection 46.01(1) of the Immigration Act provides that a person found to constitute a danger to the public in Canada is not eligible to have a claim determined by the Refugee Division. [ 29 ]Subsection 70(5) of the Immigration Act provides that a person found to constitute a danger to the public in Canada has no appeal right to the Appeal Division if a deportation order or a conditional deportation order is made against them. [ 30 ]IRPA has replaced the Immigration Act . The Regulations state:

(1) Subject to subsections (2) and (3), if a decision or

an act of the Minister or an immigration officer under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before this

section comes into force, the determination shall be made in accordance with the Immigration and Refugee Protection Act .

(2) If the decision or act referred to in subsection (1) was made under paragraph 46.01(1)( e ), subsection 70(5) or paragraph 77(3.01)(

b) of the former Act and the Immigration and Refugee Protection Act makes no provision for the decision or act, no determination shall be made . [ 31 ]IRPA makes no provision for a decision or act finding the applicant to be a danger to the public in Canada. As such, if the decision of the Minister, finding the applicant to be a danger to the public in Canada pursuant to paragraph 46.01(1)(

e) and subsection 70(5) and of the Immigration Act , is referred back by the Federal Court, no determination shall be made. [ 32 ]Under the Immigration Act , the Minister could find the applicant to be a danger to the public in Canada as the Minister did in this case. However, under the IRPA , the concept of finding an applicant to be a danger to the public in Canada has been replaced by the concept of serious criminality found in subsection 36(1) of the IRPA . Subsection 36(1) of the IRPA states: 36.

(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under

an Act of Parliament for which a term of imprisonment of more than six months has been imposed; [ 33 ] Paragraphs 101(1) (

f) and 101(2) (

a) of the IRPA state: 101.

(1) A claim is ineligible to be referred to the Refugee Protection Division if . . . (

f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)( c ).

(2) A claim is not ineligible by reason of serious criminality under paragraph (1)(

f) unless (

a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or Under paragraph 5(3)(

a) of the Controlled Drugs and Substances Act the applicant's conviction for trafficking cocaine carried with it a potential sentence of life imprisonment. The applicant was sentenced to a three-year term of incarceration for this conviction. Therefore, even if the applicant is successful on his judicial review application, he would still be ineligible to have a claim determined by the Refugee Protection Division. [ 34 ]

Section 64 of the IRPA states: 64.

(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. For the applicant's convictions, he was sentenced to two, three-year terms of incarceration to run concurrently. Accordingly,

section 64 of the IRPA would apply to the applicant and he would have no right to appeal to the Immigration Appeal Division. Therefore, even if the applicant is successful on this judicial review application, he would still have no appeal right to the Immigration Appeal Division. [ 35 ]No matter what the decision on the main judicial application, paragraphs 101(1) (

f) and paragraph 101(2) (

a) of the IRPA apply to the applicant and he would not be able to apply to the Refugee Protection Division or take an appeal to the Immigration Appeal Division. [ 36 ]The applicant raised sections 112 to 114 of the IRPA in response to the mootness issue. These sections read as follows: 112.

(1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1). . . .

(3) Refugee protection may not result from an application for protection if the person . . . (

b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under

an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; . . . 113. Consideration of an application for protection shall be as follows:

. . . (

d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in

section 97 and (

i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or . . . 114.

(1) A decision to allow the application for protection has . . . (

b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. I am of the view that an applicant can still avail himself of these provisions even if the application is found to be moot. [ 37 ]In

summary, I am of the view that the issue of whether the applicant constitutes a danger to the public pursuant to paragraph 46.01(1)(

e) and subsection 70(5) of the Immigration Act is now academic. First, if the decision of the Minister is referred back by the Federal Court, under subsection 350(2) of Regulations, no determination shall be made. Second, under sections 101 and 64 of the IRPA the applicant will no longer be eligible to have a claim determined by the Refugee Protection Division, nor have an appeal right to the Immigration Appeal Division. The matter is moot. [ 38 ] Issue 2 If this application is moot, should the Court still exercise its discretion to hear the matter?

The Supreme Court of Canada in Borowski , supra , outlined the following factors for a court to consider when deciding whether or not to exercise its discretion to hear a matter: 1. A court's competence to resolve legal disputes is rooted in the adversary system; 2. The concern for judicial economy; and 3.

The need for the court to demonstrate a measure of awareness of its proper law-making function. [ 39 ]Under the first factor, the Supreme Court of Canada in Borowski , supra , at pages 358 to 359 stated: The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail.

For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial context. I am of the view that the coming into force of the IRPA caused the live controversy between the parties to cease. The provisions of the Immigration Act no longer govern any future application by the applicant and there can be no rehearing of the applicant's application should his application be granted.

As well, I note that there are no interveners and no collateral consequences as noted by Borowski , supra . [ 40 ]In relation to the second factor of judicial economy, I cannot find any special circumstances that justify the use of scarce judicial resources to deal with the application. The case is not, as far as the record discloses, a type of case that is of a recurring nature.

How this judicial review application is decided will have no practical effect on the rights of the parties. [ 41 ]Under the third factor, the Supreme Court of Canada in Borowski , supra , at page 362 stated: The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. I am of the view that any decision rendered by the Court in the application would not intrude into the role of the legislative branch.

The Court would still be exercising its traditional role. This is the third factor to be considered by the Court in exercising its discretion whether or not to hear the application even if it is moot. [ 42 ]With respect to exercising its discretion to decide whether or not to hear a moot application, Sopinka J. made the following statement in Borowski , supra , at page 363: In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present.

This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa. In the present case, factors 1 and 2 are in favour of the Court not exercising its discretion to hear a moot application. Factor 3 does not prevent the Court from hearing the application. [ 43 ]Having decided that the application for judicial review is moot, I will not exercise the Court's discretion to hear the application.

[ 44 ]The parties shall have five days from the date of this decision to address the question of certification of a serious question of general importance and to submit any proposed serious question of general importance for my consideration for certification. The parties shall have a further five days for any reply.