Ottawa, Ontario, December 9, 2005
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Youssef Ali Ismail was born in the Palestinian West Bank in 1958. At that time it was under Jordanian control. Years later it came under Israeli control. He has been in Canada since 1991. His claims that he is a refugee under the United Nations Convention and his application for permanent resident status have both been turned down. Mr. Ismail obtained leave for the judicial review of a detention order. However, before the review was heard he was released. This is why I refused to grant judicial review on the grounds of mootness.
[2] Apparently, he is happy to return to Palestine. Either he does not wish to have Israeli travel documentation, or they will not provide him with same. He wants Jordanian documents but has been subjected to a great deal of bureaucracy both here, and there.
[3] He was held in preventive detention commencing in September 2004 in accordance with Section 58 of the Immigration and Refugee Protection Act (IRPA) which provides that the Immigration Division of the Board may hold a person if satisfied, taking into account prescribed factors, that he is, amongst other things, a danger to the public or unlikely to appear for removal from Canada. He was considered a danger to Canadian society and a flight risk. His detention was subject to mandatory monthly reviews. On 5 May 2005, the Board member decided "so I will continue your detention for the next 30 days for the reasons I have just explained..." Mr. Ismail obtained leave to seek judicial review of that order.
[4] On 29 June 2005 he was released, on certain bail and reporting conditions. The Minister has taken the point that the 5 May 2005 decision is now moot. Mr. Ismail argued the decision is not moot since he was not released unconditionally, and therefore there is still an outstanding decision that he is a flight risk and a danger to the Canadian society, although obviously much less so. Alternatively, even if the case is moot, I was nevertheless invited to exercise my judicial discretion to hear the case.
ANALYSIS
[5] The starting point on the mootness issue is the decisions of the Supreme Court in Borowski v. Canada(Attorney General) [1989] 1 S.C.R. 342 and Doucet-Boudreau v. Nova Scotia(Minister of Education)2003 SCC 62, [2003] 3 S.C.R. 3, where Iacobucci and Arbour J.J. stated at paragraph 17:
¶ 17 The doctrine of mootness reflects the principle that courts will only hear cases that will have the effect of resolving a live controversy which will or may actually affect the rights of the parties to the [page21] litigation except when the courts decide, in the exercise of their discretion, that it is nevertheless in the interest of justice that the appeal be heard (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 353) . In our view, the instant appeal is moot. The parties attended several reporting hearings, presented evidence and allowed the deponents of affidavits to be cross-examined. The desired effect has been achieved: the schools at issue have been built. Restoring the validity of the trial judge's order would have no practical effect for the litigants in this case and no further reporting sessions are necessary.
[6] In those cases, the Court outlined the three prime criteria for Courts to consider in deciding whether or not to exercise discretion to hear a moot case. They are:
"1. The presence of an adversarial context;
2. The concern for judicial economy; and
3. The need for the Court to be sensitive to its role as the adjudicative branch in our political framework."
[7] I am satisfied the case is moot. The relief sought in the application was certiorari quashing the 5 May 2005 decision relating to continued detention and an order for Mr. Ismail's release. That issue is no longer live, and Mr. Ismail has been released. If he did not like the conditions of his release, his recourse was to seek leave to have that distinct decision judicially reviewed.
[8] Mr. Ismail is really attacking remarks said about him, not so much in the 5 May 2005 decision but in the earlier decisions, and the basis of his detention when he first arrived in Canada in 1991.
[9] He takes exception to the following comment in the 5 May 2005 reasons:
"Regarding the flight risk, your cooperation in obtaining travel documents in the last years haven't [sic] been exemplary. Just one element that I remember, that when you asked the Israeli authorities, you said you that were a terrorist."
[10] Mr. Ismail's real complaint is directed against the Israeli Secret Service, a complaint beyond the purview of this Court in this application.
[11] If the Court were to look at the merits, and grant judicial review, the matter would be referred back to the Board for redetermination. The redetermination would be whether or not Mr. Ismail should be continued to be held in detention, a pointless exercise since he has been released. It is not up to this Court to order the Board to carry on an investigation to determine whether or not his reputation has been sullied by the Israeli Secret Service who he says have made "vague allegations associating me with violence".
[12] In my view, it would not be appropriate for the Court to deal with this moot case. If Mr. Ismail considers that his Charter rights have been violated, and his reputation besmirched, perhaps he has other recourses. The granting of judicial review would do nothing for his cause, and certainly would do nothing for judicial economy.
[13] I should emphasize that had Mr. Ismail still been in detention at the time of the judicial review hearing, his case would not be moot, even though the 5 May 2005 order would have been replaced by another. The Immigration Board cannot escape judicial scrutiny by way of revolving 30-day orders.
[14] There is no question of general importance to certify.
ORDER
The application for judicial review of the decision dated 5 May 2005 is dismissed.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3153-05
STYLE OF CAUSE: Youssef Ali Ismail v. The Minister of Citizenship and Immigration
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: DECEMBER 7, 2005
AND ORDER: HARRINGTON J.
APPEARANCES:
| Mr. Yavar Hameed |
FOR THE APPLICANT |
|
|
|
| Mr. Alexander Gay |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Mr. Yavar Hameed Barrister & Solicitor |
FOR THE APPLICANT |
|
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENT |