RAED JASER Applicant v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, 2019 FC 368

Date: 20190325 Docket: IMM-6389-18 Citation: 2019 FC 368 Ottawa, Ontario, March 25, 2019 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: RAED JASER Applicant and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondent ORDER AND REASONS I. Overview [ 1 ] The applicant, Mr.

Raed Jaser, brings this motion seeking to stay a hearing before the Immigration Division [ID] of the Immigration and Refugee Board of Canada, scheduled to take place on March 29, 2019, where the Minister of Public Safety and Emergency Preparedness [Minister] seeks to have him declared inadmissible to Canada. [ 2 ] For the reasons that follow, the motion is denied. II. Background [ 3 ] Mr. Jaser was convicted in the Ontario Superior Court of Justice in March 2015 on three terrorism-related offences arising from his involvement in a plot to derail a Via Rail passenger train.

He was sentenced to life imprisonment on the first count and to periods of five years and eight years imprisonment on the remaining two counts. He must serve 10 years of his sentence from the date of arrest before becoming eligible for parole. He has appealed his convictions to the Ontario Court of Appeal. [ 4 ] Mr. Jaser is not a Canadian citizen, but rather a permanent resident of Canada. [ 5 ] In parallel with the ongoing appeal of his criminal convictions, the Minister initiated admissibility proceedings before the ID in January 2017 seeking to have Mr.

Jaser found inadmissible for reasons of serious criminality and for engaging in terrorism pursuant to sections 34 and 36 of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. [ 6 ] Mr. Jaser had been assisted by several different lawyers before the ID. The record indicates that changes in counsel resulted from circumstances beyond Mr. Jaser’s control and that the hearing before the ID had been postponed on a number of prior occasions. The matter was scheduled to be heard on December 13, 2018. [ 7 ] In late November 2018 and shortly before the scheduled hearing, Mr.

Jaser’s newly retained counsel wrote to the ID advising that he had been recently retained, seeking clarification as to what documentation had been filed before the ID, and requesting that the December 13 hearing be adjourned sine die . Counsel submitted that an adjournment would allow the criminal appeal to resolve before the immigration matters proceeded and that this would be in the interests of fairness and judicial economy. It would also avoid the irreparable harm Mr. Jaser would suffer if the ID found him to be inadmissible based on convictions that were later overturned. [ 8 ] The ID refused Mr.

Jaser’s request for a sine die adjournment, noting its obligation to conduct hearings without delay and finding it was not necessary to delay proceedings to allow for the outcome of related criminal appeals. In refusing the sine die adjournment, the ID did convert the December 13, 2018 hearing to a case management conference in recognition of the parties’ need to adequately prepare for the hearing. The admissibility hearing was subsequently scheduled to be heard on March 29, 2019. [ 9 ] Mr.

Jaser initiated an Application for Leave and Judicial Review of the ID’s interlocutory decision refusing the sine die adjournment and brought this motion seeking a stay of the admissibility hearing pending final disposition of the underlying Application for Leave and Judicial Review. III. Issue [ 10 ] The motion raises a single issue: has the applicant satisfied the tripartite test for the granting of interim injunctive relief sought in the form of an order staying the March 29, 2019 hearing? IV. Analysis

A. The Test [11] To succeed on a request for a stay, an applicant must satisfy the tripartite test set out in Toth v Canada (Minister of Employmentand Immigration) (1988), (FCA), 86 NR 302 at para 6 (FCA) [Toth], by demonstrating the following: (

i) a serious issue exists: (ii) the applicant would suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours the applicant. [12] The test is conjunctive, and an applicant’s failure to establish any one of the three factors will result in a denial of the relief sought(Abdi v Canada (Minister of Public Safety and Emergency Preparedness), 2018 FC 202 at para 9). B. Does a serious issue exist? [13] The threshold for establishing a serious issue is low.

The applicant need merely demonstrate that the issues raised are not frivolousor vexatious (RJR MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 335; Thanabalasinghamv Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 486 at para 7).

However, where the relief sought by anapplicant is the same as on the underlying application, as is the case here, the threshold to establish a serious issue is elevated: theapplicant must demonstrate that an issue is raised that has a "“likelihood of success”" (Wang v Canada (Minister of Citizenship andImmigration), 2001 FCT 148 at para 11). [14] Mr. Jaser submits that the underlying application raises a number of serious issues. He argues that while he has no right to anadjournment, where issues of fairness arise, an adjournment may be appropriate.

He submits that the ID has a heightened duty of fairnessbased on the criteria set out by the Supreme Court in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, as the ID’s decision will amount to a final determination of his rights that will be unable to be undone shouldhis criminal appeal be allowed.

He is also of the view that the ID erred by (1) wrongly concluding that judicial economy favoured therefusal of the adjournment; and (2) placing too much emphasis on the indeterminacy of the adjournment, as the Ontario Court of Appealhad set an appeal date and "“resolution was on the horizon.”" He relies largely on Li v Canada (Minister of Citizenship andImmigration), 2018 FC 478 [Li]. [15] The respondent argues no serious issue arises as the underlying application is premature and Mr. Jaser has failed to demonstrate thatthe ID committed any reviewable error in refusing the sine die adjournment.

On the issue of prematurity, the respondent notes that thedenial of the adjournment request is an interlocutory decision and that absent exceptional circumstances the decision is not subject tojudicial review until the ID’s underlying proceeding is complete (Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61[CB Powell]; Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10 [Halifax]).

The respondentsubmits there are no exceptional circumstances and an appropriate remedy is available at the conclusion of the ID’s proceedings in theform of an application for leave and judicial review of the final decision. In the course of that review, any arguments regarding the ID’sinterlocutory rulings could be advanced and considered. I agree. [16] In CB Powell, the Federal Court of Appeal addressed the normal rule that parties will only have access to the courts after anadministrative process has run its course.

Justice Stratas states, beginning at paragraph 30: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in theadministrative process have been exhausted. The importance of this rule in Canadian administrative law is well-demonstrated by the large number of decisions of the Supreme Court of Canada on point: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561; Canadian Pacific Ltd. v. Matsqui Indian Band, (SCC),[1995] 1 S.C.R. 3; Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929; R. v.

Consolidated MaybrunMines Ltd., (SCC), [1998] 1 S.C.R. 706 at paragraphs 38-43; Regina Police Association Inc. v. Regina(City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14at paragraphs 31 and 34; Danyluk v. AinsworthTechnologies Inc., [2001] 2 S.C.R. 460, 2001 SCC 44 at paragraph 14-15, 58 and 74; Goudie v. Ottawa (City), [2003] 1S.C.R. 141, 2003 SCC 14; Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11 at paragraphs 1-2; Okwuobi v. Lester B.Pearson School Board, [2005] 1 S.C.R. 257, 2005 SCC 16 at paragraphs 38-55; Canada (House of Commons) v.

Vaid,[2005] 1 S.C.R. 667, 2005 SCC 30 at paragraph 96. [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrineof adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the ruleagainst interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the sameconcept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process hasrun its course.

This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in theongoing administrative process must pursue all effective remedies that are available within that process; only when theadministrative process has finished or when the administrative process affords no effective remedy can they proceed tocourt.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processesuntil after they are completed, or until the available, effective remedies are exhausted. [32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costsand delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicialreview when the applicant for judicial review may succeed at the end of the administrative process anyway:see, e.g., Consolidated Maybrun, supra at paragraph 38; Greater Moncton International Airport Authority v.

Public ServiceAlliance of Canada, 2008 FCA 68 at paragraph 1;Ontario College of Art v. Ontario (Human Rights Commission) (1992), (ON SCDC), 99 D.L.R. (4th) 738 (Ont. Div. Ct.). Further, only at the end of the administrative process

will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused withexpertise, legitimate policy judgments and valuable regulatory experience: see, e.g.,Consolidated Maybrun, supra atparagraph 43; Delmas v. Vancouver Stock Exchange (1994), (BC SC), 119 D.L.R. (4th) 136 (B.C.S.C.),aff’d (1995), (BC CA), 130 D.L.R. (4th) 461 (B.C.C.A.); Jafine v. College of Veterinarians(Ontario) (1991), (ON SC), 5 O.R. (3d) 439 (Gen. Div.).

Finally, this approach is consistent with andsupports the concept of judicial respect for administrative decision-makers who, like judges, have decision-makingresponsibilities to discharge: Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph 48. [33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processesvigorously. This is shown by the narrowness of the “exceptional circumstances” exception.

Little need be said about thisexception, as the parties in this appeal did not contend that there were any exceptional circumstances permitting earlyrecourse to the courts. Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and thethreshold for exceptionality is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Actionin Canada (looseleaf) (Toronto: Canvasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J.Mullan,Administrative Law (Toronto: Irwin Law, 2001) at pages 485-494.

Exceptional circumstances are best illustrated bythe very few modern cases where courts have granted prohibition or injunction against administrative decision-makersbefore or during their proceedings.

Concerns about procedural fairness or bias, the presence of an important legal orconstitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptionalcircumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised andan effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v.C.U.E.W, Local 2 (1988), 55 D.L.R. (4th) 128 (Ont. Div. Ct.).

As I shall soon demonstrate, the presence of so-calledjurisdictional issues is not an exceptional circumstance justifying early recourse to courts. [17] The Supreme Court of Canada has observed that "“reviewing courts now show more restraint in short-circuiting the decision-making role of the tribunal”" and in doing so has highlighted the risks of early judicial intervention: [36] […] Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows forjudicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal,might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and maycompromise carefully crafted, comprehensive legislative regimes: [citations removed] (Halifax at para 36) [18] Mr.

Jaser acknowledges that intervention in the interlocutory decisions of the ID should only occur in exceptional circumstancesbut argues those circumstances exist in this case. [19] He submits that the prevention of bifurcation, the protection of judicial economy, and the possibility that an applicant willultimately obtain the relief sought are among the key reasons for the court’s reluctance to intervene on an interlocutory basis. He arguesthat, in this case, all of those factors actually favour intervention.

The determinative process in this instance is the criminal appeal, andearly judicial intervention will allow the criminal appeal to resolve the core question before the ID—are the criminal convictions sound?The effect, in this instance, will be to limit, not promote, bifurcation. It is also submitted that intervention will protect judicial economyby avoiding complex and convoluted litigation that may arise in respect of the

interpretation and application of the IRPA. Finally, it isunlikely that Mr. Jaser will obtain a favourable result if the ID admissibility hearing proceeds. [20] As previously noted, Mr. Jaser relies heavily on the decision of Justice Keith Boswell in Li in support of his position that a seriousissue arises from the ID’s interlocutory decision. The facts in Li are similar. Mr. Li had sought an adjournment before the ID pendingdetermination of his appeal of a criminal conviction. The adjournment was denied.

On judicial review, Justice Boswell concluded thatthe ID had erred in refusing the adjournment. [21] Li, however differs in one material respect. Unlike the circumstance here, Mr. Li did not seek judicial review of the interlocutoryrefusal to grant an adjournment. Instead, he waited until the proceedings before the ID were completed and then sought review of theID’s final decision.

In doing so, he also challenged the reasonableness of the ID’s adjournment decision. [22] The ability to review interlocutory decisions as part of a review of a final decision is not controversial; an applicant may seekreview of any error "“whether it results from [the] final judgment or from an interlocutory decision”" (Szczecka v Canada (Minister ofEmployment and Immigration) (1993), (FCA), 170 NR 58 at para 6 (FCA); also see Omobude v Canada (Minister ofCitizenship and Immigration), 2015 FC 602 at paras 23–24).

This occurred in Li, and the risks of early judicial intervention identified bythe Supreme Court of Canada were avoided. The result was an efficient use of both the tribunal’s and the Court’s limited resources, andMr. Li received an effective and meaningful remedy that placed him in no better or worse a position than he would have been in had theremedy been obtained on an interlocutory basis. [23] Mr. Jaser argues that he will be left without a remedy if found inadmissible but his criminal appeal is ultimately successful and thatthis warrants early intervention on an exceptional basis.

The respondent takes issue with the view that a remedy will be unavailable. [24] While Mr. Jaser’s circumstances may be unusual, even unique, he has not demonstrated that he will be prejudiced or unable to fullyadvance the issue of remedy should he seek a review of the ID’s final decision upon the completion of that process.

This is not one ofthose very few circumstances where a party should have early recourse to the courts; the availability of judicial review of the ID’s finaldecision means an adequate remedy will be available once a final decision has been made, and the ongoing process before the ID shouldnot be disrupted to allow a challenge at this stage. [25] Having concluded that the underlying application is premature, I need not consider the merits of the issues raised or the remainingtwo prongs of the tripartite Toth test.

ORDER IN IMM-6389-18 THIS COURT ORDERS that : 1. The motion is dismissed; and 2. There is no order as to costs. "Patrick Gleeson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6389-18 STYLE OF CAUSE: RAED JASER v THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: March 19, 2019 ORDER AND REASONS: GLEESON J. DATED: March 25, 2019 APPEARANCES : Simon Wallace For The Applicant Ian Hicks For The Respondent SOLICITORS OF RECORD : Simon Wallace Barrister and Solicitor Refugee Law Office Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent