2012 FC, 2012 FC 1309

Date: 20121109 Docket: IMM-1968-12 Citation: 2012 FC 1309 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario, Nov em ber 9, 2012 Present: The Honourable Mr. Justice Simon Noël BETWEEN: DIAKARIDIA CAMARA Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent REASONS FOR ORDER AND ORDER [ 1 ] This is an application for judicial review of a decision by a removal officer pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC (2001), c 27 [IRPA].

The officer’s decision, dated February 24, 2012, was to deny the request to stay the removal pending a decision in his application for a pre-removal risk assessment [PRRA]. The applicant claims that he is entitled to a PRRA decision before his removal despite

section 166 of the Immigration and Refugee Protection Regulations , SOR/2002-227 [Regulations], and that a stay of removal should be granted accordingly. On September 14, 2012, he was notified of a negative PRRA decision. [ 2 ] A decision having been rendered with respect to the PRRA application, the parties agree that the application for judicial review is now moot. However, the applicant is persisting and seeks public interest standing so that the questions of law related to

section 166 of the Regulations can be decided. This raises constitutional issues and issues of

interpretation. [ 3 ] A preliminary issue is whether this Court should exercise its discretion to hear this case despite its mootness. This requires examining the facts at the basis of the application for judicial review and the legal framework for evaluating the exercise of this Court’s discretion, in light of the arguments presented by the parties. I. Facts and decision under review [ 4 ] Mr. Camara arrived at Pierre-Elliott Trudeau Airport from Mali with a visitor’s visa on February 16, 2012. [ 5 ] A removal order was issued against him at the point of entry.

The order was issued because the applicant had made contradictory statements, first saying that he had come to Canada as a visitor and later saying that he had come to work. He stated at that time that he did not fear returning to his country. He was placed in detention.

[ 6 ] The applicant made a claim for refugee protection on February 18, 2012. He alleges that he was persecuted in Mali because of his sexual orientation. He states that he did not discuss this situation with the immigration officers upon his arrival because he believed that they were police officers and did not trust them. [ 7 ] On February 20, the Immigration Division of the Immigration and Refugee Board conducted a review of the reasons for the applicant’s detention. [ 8 ] He was given the opportunity to make a pre-removal risk assessment [PRRA] application.

The application was prepared and filed on an urgent basis on February 22, 2012, in Montréal. [ 9 ] The applicant asked the removal officer to stay his removal pending the outcome of his PRRA application. The officer replied in a letter dated February 22, 2012, that pursuant to

section 166 of the Regulations , he could not obtain an administrative stay of the removal order while the PRRA application was under review. The officer also notified the applicant that an application for a stay is generally only considered once a removal date has been set. [ 10 ] On February 24, 2012, the applicant met with the removal officer, who explained the removal proceedings to him.

The officer reiterated his position that the applicant could be removed prior to a PRRA decision. [ 11 ] On February 27, 2012, the applicant was notified by letter that his removal was scheduled for the next day. [ 12 ] The next day, the applicant filed an application for judicial review. The applicant also applied for a judicial stay, which was granted by the Federal Court. It ordered a stay of the removal order pending the outcome of the application for leave and judicial review. [ 13 ] He was notified of the negative PRRA decision on September 14, 2012. II.

Applicant’s submissions [ 14 ] The applicant acknowledges that this application is moot and asks that the Federal Court exercise its discretion to hear his constitutional challenge of

section 166 of the Regulations in light of

section 7 of the Canadian Charter of Rights and Freedoms as well as his challenge of the legality of the removal officer’s

interpretation of

section 166. [ 15 ] The applicant states that the parties retain an adversarial stake in the issues. He also submits that judicial economy weighs in favour of this Court’s exercising its discretion, given that the legality of

section 166 of the Regulations might otherwise evade review by the Court; the resulting social and human cost favours the applicant. [ 16 ] Finally, the facts leading to this judicial review are repetitive and short-term, and it appears that similar cases have been identified.

The applicant claims that the situation could recur without it being possible for the person to exercise his or her rights on account of an expedited removal and the lack of resources of those who find themselves in such a situation. [ 17 ] Furthermore, for this issue to come before the Federal Court for a decision without being moot, an application for judicial review of the removal officer’s decision would have to be brought and an application for stay granted.

There is a risk that the factual framework of this case will repeat itself and that another applicant’s challenge will become moot before the constitutional issue can be decided. [ 18 ] Finally, it is argued that the social and human cost at stake in this case is considerable. The constitutional issue relates to

section 7 of the Charter , which enshrines the right to life, liberty and security.

III. Respondent’s submissions [19] The respondent submits that the Court should not hear this case because the issue is moot, as the PRRA application has beendecided and the applicant does not have the necessary standing to challenge the constitutionality of

section 166 of the Regulations or thelegality of the removal officer’s decision. [20] The respondent submits that the applicant lacks the necessary standing given that he has no interest in the outcome of thisdispute. Moreover, it is clear that

section 166 of the Regulations does not limit the removal officer’s discretion to grant a stay and that theparties retain no adversarial stake in the issues. [21] Also, an application could be brought to the Court relating to the validity of

section 166 of the Regulations in a different set ofcircumstances from that of the applicant. The applicant is in fact asking this Court to render a judicial opinion on the

interpretation of theCharter in the abstract, as no dispute remains between the parties. [22] As for whether the applicant has public interest standing, the respondent is of the view that the criteria are not met in thiscase. First, the applicant has not raised any serious judicial issue. Furthermore, the applicant has no real interest in the outcome of theissue, and this application is not a reasonable and effective way to bring the issue before the courts. IV. Issue [23] Since the dispute is now moot, should the Court exercise its discretion and hear the application? V.

Analysis [24] Given that the applicant’s PRRA was rejected, it is clear that this application for judicial review is moot. The applicationsought to quash the removal officer’s decision refusing to grant a stay of his removal order pending the outcome of his PRRAapplication.

A decision has been reached; his PRRA application was rejected. [25] The proper framework for the discretion analysis is found in Borowski v Canada (Attorney General), [1989] 1 SCR 342, (SCC) [Borowski], which establishes the criteria to be applied by the Court in determining whether it should exercise itsdiscretion and hear the parties despite the mootness of the application. It must then be decided whether the applicant has the necessarystanding to challenge the constitutionality of a legislative provision and the legality of the officer’s

interpretation of that provision. [26] When a case involving a challenge to a law is moot, the judge may exercise his or her discretion and decide to hear the case.In performing the analysis, the Court should be guided by three criteria, as stated by the Supreme Court in Borowski, above, atparagraph 15: 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 ahypothetical or abstract question.

The general principle applies when the decision of the court will not have the effect of resolving somecontroversy 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 commencedbut 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 departfrom its policy or practice. . . . [27] In this case, the first criterion is not met, given that no live controversy remains between the parties.

The refusal of the PRRAapplication brought the matter to a close. [28] As for the second criterion, Borowski, above, states that applying judicial resources to cases that are capable of repetition andare of a short duration may be a reason for the judge to exercise his or her discretion. However, it would still be preferable to decide theissue in a genuinely adversarial context, as the issues of the constitutionality of

section 166 of the Regulations and the legality of theremoval officer’s refusal to grant a stay pursuant to this legislative provision will eventually arise in a dispute where their resolution willhave an impact on the applicant’s rights.

[29] Moreover, should the Court decide to deal with the issues in this case, the decision would have no practical effect on theparties’ rights. Since the stay of the applicant’s removal was obtained pending the outcome of his PRRA application, the decisionregarding the constitutionality of

section 166 of the Regulations and the legality of its

interpretation by the removal officer will have noeffect on his rights. [30] Finally, with respect to the third criterion, the Supreme Court states that “[p]ronouncing judgments in the absence of a disputeaffecting the rights of the parties may be viewed as intruding into the role of the legislative branch” (Borowski, above).

It is moreappropriate for the Court to review the legality of a legislative provision when the outcome has a real impact on the rights of a party.That way, a decision is rendered that takes into account the facts in the case, and the result will therefore have a practical effect on therights of a party.

If it were otherwise, the result would be an encroachment of judicial power on the power of the executive, through thetransformation of an appeal into a reference. [31] Gonzalez-Rubio Suescan v Canada (Minister of Citizenship and Immigration), 2007 FC 438, 2007 CarswellNat 1027[Suescan], involves a factual situation similar to the one before me. The applicant was subject to a removal order upon his arrival at theport of entry. It had been decided that he was not eligible for refugee protection pursuant to paragraph 101(1)(

c) of the IRPA. He appliedfor judicial review of that decision, seeking to be constitutionally exempted from the application of paragraph 101(1)(

c) of the IRPA,alleging that removing him to his country while a decision was still pending with respect to the risks he faced there was contrary to theCharter. However, between the time the applicant filed his application for judicial review and the time of the hearing, his PRRAapplication was rejected. The Court therefore held that “[s]ince this case arises out of a concern that the absence of a risk assessmentviolates the Charter, any live controversy between the parties has been dissolved by the PRRA decision” (Suescan, above, at paragraph25).

The judge therefore declined to hear the case on that basis. [32] Although, in that case, the applicant sought a constitutional exemption from the application of paragraph 101(1)(

c) of theIRPA and was not challenging its constitutionality, as in this case, the principle of mootness of an application for judicial reviewestablished in that case remains applicable here. [33] I would add that the removal officer’s decision is brief and not particularly informative. It would have been useful to have hada decision containing a clear explanation of the precise reasons for the refusal, the importance of the PRRA application to this case, theinvolvement of

section 166 of the Regulations and the facts connected with the applicant. For example, what was the effect of thecontradictions in the explanations provided by the applicant to the immigration officer at the point of entry on the exercise of theremoval officer’s discretion? [34] The applicant has also filed two affidavits from individuals that relate, in the form of hearsay, the experiences of people upontheir arrival in Canada.

Janet Dench of the Canadian Council for Refugees and Jennifer Jeanes of Action Réfugiés Montréal describe, intheir respective affidavits, how in the performance of their duties, they have met individuals who, like the applicant, were prevented fromapplying for refugee protection and who were subject to removal before a decision was rendered with regard to their PRRA applications.This type of evidence is not necessarily as useful as is being argued. There are certainly other ways to file more compelling evidence.

Itis important to have an appropriate factual backdrop when asking a Court to decide an issue of constitutional law. The usefulness of thefacts in this case is minimal. [35] The constitutional issue involving

section 166 of the Regulations and the issue of the

interpretation of that

section by removalofficers are certainly of interest. However, this case, as presented, does not have a factual backdrop that would enable the Court to reachan informed decision. On its face, the question of law is theoretically interesting, but the factual foundation underlying it is weak. [36] A case will eventually arise that combines the constitutional issue with an appropriate set of facts, which will enable the Courtto deal with it.

This case does not bring together these two aspects in a way that would allow the Court to render an informed decision. [37] To determine whether the applicant has public interest standing, I must apply the test described in Canada (Minister ofJustice) v Borowski, (SCC), [1981] 2 SCR 575, and reiterated in Canada (Attorney General) v Downtown Eastside SexWorkers United Against Violence Society, 2012 SCC 45 at paragraph 37 [Downtown Eastside Sex Workers United Against ViolenceSociety]: In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a seriousjusticiable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, theproposed suit is a reasonable and effective way to bring the issue before the courts: Borowski, at p. 598; Finlay, at p. 626; CanadianCouncil of Churches, at p. 253; Hy and Zel’s, at p. 690; Chaoulli, at paras. 35 and 188.

The plaintiff seeking public interest standing

must persuade the court that these factors, applied purposively and flexibly, favour granting standing. All of the other relevant considerations being equal, a plaintiff with standing as of right will generally be preferred. [ 38 ] First of all, no serious judicial issue is raised in this case. As mentioned above, a decision has been reached with respect to the applicant’s PRRA application. Therefore, no live controversy remains between the parties. [ 39 ] In this case, the applicant has no real stake in the outcome of the case, as a decision regarding the constitutionality of

section 166 of the Regulations and the legality of the removal officer’s

interpretation of his discretionary power to order a stay of the removal pursuant to this legislative provision will have no effect on the applicant’s legal position. [ 40 ] A reasonable and effective manner for the courts to decide the issue of the constitutionality of

section 166 of the Regulations and the legality of its

interpretation by the removal officer is to decide it in a specific factual context so as to render a decision that would have a real impact on a party’s rights. This is not the case here. A situation will eventually arise in which the legal issue at stake can be thoroughly analyzed with supporting evidence. Otherwise, a social agency can bring the case forward, as was done in Downtown Eastside Sex Workers United Against Violence Society , above.

In such a case, the parties can mount a complete case with evidence and submissions on the law, and the public interest would be well represented. [ 41 ] In this case, the applicant is seeking public interest standing, but it is important to remember that he is in Canada illegally. The stay he was granted allows him to remain on Canadian soil only for the duration of this judicial review. By claiming public interest standing, he is in fact delaying the outcome of the decision, even though the only possible outcome for him is negative. If a Court hearing this action were to decide that

section 166 of the Regulations is unconstitutional, this would not strengthen the applicant’s position. It is difficult to grant the applicant public interest standing in light of his status in Canada and the circumstances of his arrival.

I am of the view that this is not a factor in favour of granting public interest standing in such a situation. [ 42 ] Given the particular fact situation of this case, the PRRA decision communicated on September 14, 2012, the fact that the dispute between the parties is now moot and that the Court, for the above-mentioned reasons, does not intend to exercise its discretion to hear the constitutional issue raised, it would appear to me that no question need be certified. The matter is fact-specific and not of general importance.

However, if a party wishes to submit a question, it may do so within five days of receiving this order, and the other party will have five additional days to comment on it. ORDER THIS COURT ORDERS that this application for judicial review of the removal officer’s decision be dismissed, the dispute between the parties now being moot. With respect to the preliminary issue, the Court chooses not to exercise its discretion to hear the application for judicial review.

The parties may submit a question for certification within five days of receiving this order; if a party chooses to do so, the other party will have five additional days to comment on it. “Simon Noël” __________________________ Judge

Certified true translation Francie Gow, BCL, LLB FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1968-12 STYLE OF CAUSE: DIAKARIDIA CAMARA v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: October 16, 2012 REASONS FOR ORDER AND ORDER: SIMON NOËL J. DATED: November 9, 2012 APPEARANCES : Mylène Barrière FOR THE APPLI CANT Sébastien Dasylva Catherine Brisebois FOR THE RESPONDENT

COUNSEL OF RECORD : Mylène Barrière Counsel Montréal, Quebec FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Ca nada FOR THE RESPONDENT