T-382-97
BETWEEN:
EDGAR ARNOLD GARCIA
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
(THE MINISTER OF JUSTICE)
Respondent
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
INTRODUCTION
The Applicant seeks interim relief in the way of an order staying his surrender to the United States of America for extradition until after his application for judicial review has been resolved. In turn, the application for judicial review is for an order prohibiting the Attorney General of Canada (hereinafter the "A.G.C.") from surrendering the Applicant for extradition until the resolution of his claim for refugee status. This application for judicial review was filed on March 6, 1997. The hearing of his claim for refugee status is scheduled for May 8, 1997.
However, the Respondent A.G.C. has made a separate motion to strike the Applicant's Originating Notice of Motion dated March 6, 1997 on the ground that the Federal Court lacks jurisdiction over extradition matters.
FACTS
The Applicant is a citizen of the U.S.A. who came to Canada illegally in June 1991. He has been a prisoner in the Toronto (Don) Jail since June 1992, when he was apprehended by the Canadian authorities.
The basis of the current application for interim relief is inextricably linked to his claim for refugee status. The Applicant states that he faces the death penalty in the state of Florida if he is extradited to the U.S.A. and convicted of several outstanding charges. The Applicant faces both state and federal charges dating from February, 1991. The state charge is for first degree murder. The federal charges are for conspiracy to possess a narcotic with intent to distribute, possession of a narcotic with intent to distribute and carrying and using a firearm. The Applicant alleges that he is a refugee with a well-founded fear of persecution on the basis of race because the death penalty is applied in a discriminatory fashion against Hispanics in the U.S.A.
The Applicant has sought leave to appeal to the Supreme Court of Canada1 the warrant of committal issued by the Ontario Court of Justice (General Division) on May 11, 1994 (Tab C, Affidavit of Dalila Sousa). On October 29, 1994, the Minister of Justice, the Honourable Allan Rock ("the Minister") signed warrants ordering the Applicant's surrender to the U.S.A. on the state and federal charges (Tab J, Affidavit of Dalila Sousa). The Ontario Court of Appeal on July 18, 1996 dismissed the Applicant's appeal of the extradition judge's decision and his application for judicial review of the Minister's surrender order of October 29, 1994 (Tab D, Affidavit of Dalila Sousa).
In the meantime, on October 17, 1996, some four years after his arrival in Canada, the applicant filed a claim for refugee status. On December 12, 1996, the Applicant was found to be "eligible" to claim Convention refugee status. However, on that same date, an immigration adjudicator also issued a conditional deportation order against the Applicant. Finally, on January 5, 1997, the Applicant applied to the Human Rights Committee of the United Nations pursuant to the Optional Protocol to the International Covenant on Civil and Political Rights. The Applicant sought a declaration from the Committee that Canada would be in violation of its international obligations if it extradited the Applicant to Florida to face a possible discriminatory death penalty sentence. In addition, the Committee issued an interim request to Canada to refrain from extraditing the Applicant until the Committee had disposed of the application. The Minister has not yet responded to the Committee's request.
Counsel for the Applicant made submissions to the A.G.C. on October 29, 1996 and February 6, 1997, (pages 31-41, 72, Garcia Affidavit), seeking assurances that the Applicant would not be extradited pending the outcome of his claim for refugee status. In a letter dated February 14, 1997, a Senior Policy Advisor for the A.G.C. responded to the Applicant's earlier requests in the following fashion:
| You have submitted that Mr. Garcia's surrender to the United States of America should not take place until his refugee claim has been processed and decided. |
| In the particular circumstances of this case, please be advised that the Minister is not prepared to seek assurances that execution of the surrender order will be held in abeyance if Mr. Garcia is not successful in his appeal to the Supreme Court of Canada. |
(page 76, Garcia Affidavit)
On March 6, 1997, the Applicant issued an Originating Notice of Motion for judicial review of the Minister's ostensible decision of February 14, 1997. He also sought interim relief under Section 18.2 of the Federal Court Act, R.S.C. 1985, c-F-7. The Applicant also filed a Notice of Constitutional Question to challenge the constitutionality of the Minister's proposed surrender of the Applicant for extradition before the resolution of his claim to refugee status under the Immigration Act, R.S.C. 1985, c.I-2.
ISSUES
Should the Court strike the Originating Notice of Motion because it lacks jurisdiction over matters arising under the Extradition Act, R.S.C. 1985, c.E-23 (hereinafter the "Extradition Act")? If the Court does lack jurisdiction, then the application for interim relief under the original application for judicial review is moot.
If the Court does not strike the Originating Notice of Motion, should a stay be granted until the Applicant has had his refugee hearing?
ANALYSIS
Jurisdiction over Extradition
The first issue is to determine whether, by means of a Motion, one can request the striking out of an Originating Notice of Motion.
In the case of David Bull Laboratories (Canada) Inc. v. Pharmacia Inc. et al., [1995] 1 F.C. 588, it was held:
| The remedy of striking out a notice of motion was not available in these circumstances. Rule 419 permits the Court, at any stage of an "action," to order any "pleading" to be struck out. Rule 2 defines "action" as a proceeding in the Trial Division "other than an appeal, an application or an originating motion," and "pleading" as any document whereby an action in the Trial Division is initiated. Rule 419 does not directly authorize the striking out of a notice of motion. An application commenced by notice of motion is not an "action" and the notice of motion is not a "pleading". |
| The contrast between actions and motions in this Court is even more marked where the motion involved is for judicial review. |
At pages 596, 597 and 600 in David Bull, Mr. Justice Strayer makes the following statement concerning the making of a motion to strike a motion:
| The basic explanation for the lack of a provision in the Federal Court Rules for striking out notices of motion can be found in the differences between actions and other proceedings. An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action. Even though it is important both to the parties and the Court that futile claims or defences not be carried forward to trial, it is still the rare case where a judge is prepared to strike out a pleading under Rule 419. Further, the process of striking out is much more feasible in the case of actions because there are numerous rules which require precise pleadings as to the nature of the claim or the defence and the facts upon which it is based. There are no comparable rules with respect to notices of motion. Both Rule 319(1) [as am. by SOR/88-221, s.4], the general provision with respect to applications to the Court, and Rule 1602(2) [as enacted by SOR/92-43, s.19], the relevant rule in the present case which involves an application for judicial review, merely require that the notice of motion identify "the precise relief" being sought, and "the grounds intended to be argued." The lack of requirements for precise allegations of fact in notices of motion would make it far more risky for a court to strike such documents. Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail. The originating notice of motion itself can and will be dealt with definitively on its merits at a hearing before a judge of the Trial Division now fixed for January 17, 1995. |
| - - - - - - - - - - |
| This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. |
It thus becomes clearly apparent that a motion to strike should not be made to strike an Originating Notice of Motion unless the Court, because of its inherent jurisdiction or "through Rule 5 by analogy to other rules, [dismisses] in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success".
I am satisfied that an application to strike for want of jurisdiction is such an application, that is, that it is an application, that when decided would be one that should decide the entire issue in a summary manner.
I wish to emphasize that a motion to strike a motion or an originating motion should not be used unless there exists exceptional circumstances, that is, the Originating Notice of Motion "is so clearly improper as to be bereft of any possibility of success".
As I have stated, in this case, the Respondent has filed a motion to strike the Applicant's Originating Notice of Motion on the basis that the Federal Court lacks jurisdiction in this matter as the issue is one of extradition and not immigration law.
I believe that there appears to be an element of desperation to the Applicant's Originating Notice of Motion for judicial review before the Federal Court. The proper course of action is to seek redress in the provincial court of appeal for judicial review of a decision of the Minister in extradition matters. In the Applicant's affidavit, there is an allusion to the fact that the Applicant made an unsuccessful application for judicial review of the Minister's actual surrender order dated October 29, 1994 to the Ontario Court of Appeal (paragraph 6, page 2, Garcia Affidavit, Tab D, Affidavit of Dalila Sousa)
Section 9(1) of the Extradition Act reads,
| Judges and Commissioners |
| All judges of the superior courts and of the county courts of a province, and all commissioners who are appointed for the purpose in a province by the Governor in Council, under the Great Seal, by virtue of this Part, are authorized to act judicially in extradition matters under this Part within the province, and each of these persons has for the purposes of this Part all the powers and jurisdiction of any judge or magistrate of the province. |
Section 25.2 (1) of the Extradition Act is even more explicit on the jurisdiction issue. It was added to the Extradition Act in S.C. 1992, c.13 and came into force on December 1, 1992. It reads:
| Notwithstanding the Federal Court Act, the court of appeal of the province in which the committal of a fugitive was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, in accordance with subsections (2) to (10), made in respect of the decision of the Minister of Justice under section 25. |
There is no doubt that the usual jurisdiction of this Court to hear applications for judicial review or its powers under Section 17(1)2 of the Federal Court Act to grant relief against the Crown has been ousted by the clear and unambiguous terms of the Extradition Act.
The Applicant submits that the decision of the Minister under review is not purely an "extradition matter". He submits that the purported decision of the Minister under review in the present case is something far less certain than an actual surrender order but more in the line of the Minister's refusal to provide reassurances.
There are two difficulties with this submission. First, I am satisfied that the refusal given by the Minister is not a "decision" and secondly, even in the Originating Notice of Motion, the Applicant highlights the extradition character of the decision.
The Applicant states that he seeks an order prohibiting the A.G.C. "from surrendering the Applicant for extradition to the United States of America while the Applicant's claim to Convention refugee status remains pending. The Minister refused, on February 14, 1997, to refrain from surrendering the Applicant". In effect, according to the Applicant, the decision is the refusal to refrain from surrendering the Applicant while the claim for refugee status is outstanding and not an actual surrender under Section 25(1)of the Extradition Act. Section 25(1) reads in part:
| Subject to this Part, the Minister of Justice, on the requisition of a foreign state, may, within a period of ninety days after the date of a fugitive's committal for surrender, under the hand and seal of the Minister, order the fugitive to be surrendered to the person or persons who are, in the Minister's opinion, duly authorized to receive the fugitive in the name and on behalf of the foreign state, and the fugitive shall be so surrendered accordingly. |
I am satisfied that the letter of the Minister dated February 14, 1997 is an extradition matter and is therefore subject to Section 25.2(1) of the Extradition Act. I am satisfied that the carrying out of an Order of Extradition is part of the Extradition Order and not a separate decision. It is one decision, to extradite and to execute the extradition. Before Section 25.2(1) came into force, the Federal Court did have jurisdiction to carry out a judicial review of the decision of the Minister: DesFosses v. Canada (Minister of Justice) (16 October 1996), T-1945-95 (F.C.T.D.), [1996] F.C.J. No. 1325 (Q.L.).3 However, in the light of the changes to the Extradition Act, changes made to streamline the extradition hearing,4 appeal and judicial review process, this Court does not have jurisdiction to hear an application for judicial review of the decision of the Minister or issue interim relief pursuant to that application. The fact that the Applicant has also filed a Notice of Constitutional Question does not confer jurisdiction. In Mooring v. National Parole Board et al. (1996), 192 N.R. 161 at 171, the Supreme Court recently reaffirmed that under Section 24(1) of the Canadian Charter of Rights and Freedoms, 1982, a court will only be a "court of competent jurisdiction" for the purposes of Section 24(1) where it has jurisdiction over the parties, the subject matter and the remedy sought by the complainant. The Federal Court has no jurisdiction over the subject matter of the Applicant's claim and is therefore not a court of competent jurisdiction.
Even if the Court had jurisdiction, I am also satisfied that the Applicant has failed to prove to me that he is entitled to the interim relief sought. I hold that there is no serious issue to be tried to warrant interim relief.
Serious Issue
Although it is for the Immigration Refugee Board to decide whether or not the Applicant is a Convention Refugee, I am satisfied that in order to grant an application for stay, I must determine whether or not the Applicant can show that there exists the possibility that he could be found to be a Convention Refugee.
It is clear to me that the evidence shows that there is no possibility that the Applicant can be considered a Convention Refugee and be permitted to remain in Canada.
The sole basis for the Applicant's claim to refugee status is the possibility of persecution because he is Hispanic and subject to the death penalty.
The evidence is such that the Government of Canada was assured that the Applicant would not be subject to the death penalty both for the alleged murder charge and for the narcotic charges.
In addition, the Applicant submitted arguments concerning Section 7 of the Charter in appealing the decision of the Ontario Court General Division relating to his extradition. These submissions were not accepted by the Ontario Court of Appeal.
Furthermore, I am satisfied that the claim for Convention Refugee status is a ploy to evade the inevitable. Although Immigration Law does not put a time limit on when one can claim to be a Convention Refugee, a most significant element to be considered is how long after one could have made such a claim, a Convention Refugee claim was in fact made.
The Applicant decided to file a Convention Refugee claim some four years after he first had the opportunity to do so. As well, it was only after he was ordered to be extradited that he made such a claim.
I am satisfied that this too indicates that the Applicant lacks an arguable case to be declared a Convention Refugee.
I do not have to discuss the issue of Irreparable Harm nor that of the Balance of Convenience. I will only say that the Applicant will not be subject to irreparable harm in that he will not be subject to the death penalty.
To be subject to incarceration, even for life, because a serious crime was committed by the Applicant, is not irreparable harm and is not persecution.
Conclusion
I am satisfied that the Court does not have jurisdiction to hear the application for judicial review nor consequently to grant the interim relief requested.
I would not have granted an application for stay had I had the jurisdiction to do so, which, as I have stated, I do not have.
J U D G E
OTTAWA
April 15, 1996
__________________1 The Applicant's leave application to the Supreme Court was filed on December 13, 1996 and is still pending.
2 Section 17(1) reads, "Except as otherwise provided in this Act or any other Act of Parliament the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown" (emphasis added).
3 Under the transitional provision of the amendments to the Extradition Act , DesFosses was decided according to the Act as it read before the coming into force of Section 25.2(1). Section 7, S.C. 1992, c. 13, reads, "Any matter in respect of which an extradition hearing has commenced before a judge referred to in section 13 of the Extradition Act on the day on which this section comes into force, any proceeding on habeas corpus from such a matter, any decision of the Minister of Justice on such a matter, any proceeding on habeas corpus from such a decision and any appeal from such a matter, decision or habeas corpus proceeding shall be heard and disposed of as though this Act had not been enacted."