Date: 20051011
Docket: IMM-4468-05
Citation: 2005 FC 1380
Vancouver, British Columbia, Tuesday, the 11th day of October, 2005
Present: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Applicant
- and -
MOHAMUD HASSAN MUSE
Respondent
[1] Mr. Muse is a convicted kidnapper and rapist. He is also a Somalian involved in immigration judicial review proceedings before this Court. He says he needs a lawyer, but cannot afford one. He asks this Court to order the Minister to provide him one.
[2] Mr. Muse was landed in Canada as a permanent resident in 1996. In 2002, he was convicted of kidnapping and raping a 17-year old girl. He was sentenced to a term of imprisonment of 54 months for each offence, to be served concurrently.
[3] The Immigration and Refugee Board quite rightly issued a deportation order against him on the basis that he is inadmissible to Canada because of serious criminality as defined in section 36(1)(a) of the Immigration and Refugee Protection Act ("IRPA"). If he were from, say, Scandinavia, he would have been long gone. Mr. Muse, as was his right, applied for a pre-removal risk assessment ("PRRA") which had the effect of staying the deportation order until such time as it was refused.
[4] This May, the PRRA officer determined that Mr. Muse would be at risk of death or cruel and unusual treatment or punishment if he were returned to Somalia.
[5] Since he is inadmissible to Canada because of serious criminality, section 113 of IRPA comes into play. His case has been sent to the Minister's Delegate for final determination. One consideration is whether Mr. Muse is a danger to the Canadian public. It may be a while before that determination is made. That determination is not before the Court. What is before the Court is what is to become of Mr. Muse in the meantime.
[6] In accordance with the law and regulations, he has been held in detention. His detention must be reviewed regularly. In the first three detention review hearings, it was determined that he was a danger to the public and unlikely to voluntarily appear for removal from Canada.
[7] However, in his fourth detention review hearing, he was released on certain terms and conditions. Amongst other things, he was required to make a security deposit in the amount of $7,500 and report weekly to the immigration authorities.
[8] The Minister immediately brought on an application for leave and for judicial review of that decision, and obtained from this Court a stay of the release order. Mr. Muse remains in detention to this day.
[9] The application for leave has yet to be heard. The delays for Mr. Muse to file his motion record in reply have been extended while he seeks an order for state-funded counsel.
[10] Mr. Muse, who sometimes had been represented at detention hearings by counsel and sometimes not, asked that his motion be decided on the basis of written representations, without oral argument, pursuant to Rule 369 of the Federal Courts Rules. The Minister filed material in reply and agreed that the motion should be decided on the basis of the written representations.
[11] However, the duty judge called upon the parties to appear before him. Mr. Muse was to appear by way of teleconference. He did not. The duty judge asked counsel for the Minister whether she was aware of any cases in which the Federal Courts had ordered the state to fund counsel. She was not. The motion was dismissed.
[12] Mr. Muse then moved, through counsel, who declared that he only had a mandate for that motion, that the order be set aside because his absence was caused by accident or mistake and because he had a prima facie argument that the order should not have been made, the whole as contemplated by Rule 399(1) of the Federal Courts Rules.
[13] Although it would have been better that the judge who dismissed the application in the first place hear the motion to set aside, he was not available.
[14] It was not in doubt that Mr. Muse's failure to appear was not of his doing. There was some sort of an administrative foul-up at the North Fraser Pre-Trial Centre, where he is being detained.
[15] Mr. Muse's counsel drew the attention of the Court to the decision of the Federal Court of Appeal in Canada (Attorney General) v. Purcell, [1995] F.C.J. No. 1331 (QL). That was an unemployment insurance case in which the Commission was raising a novel issue. The Court was concerned that Mr. Purcell, as respondent, was not represented by counsel and could not afford to be represented. The Court ordered the Attorney General to assist him in retaining legal counsel and to pay for same, if necessary.
[16] In my view, that case disclosed a prima facie argument that the order dismissing the motion may not have been made if brought to the attention of the Court and so I rescinded it.
[17] Turning then to the motion anew, the parties were ordered to appear before me by teleconference. They were asked whether there were any other cases relied on which had not yet been drawn to the Court's attention. There were not. The motion was then taken under advisement.
ANALYSIS
[18] Mr. Muse relies on section 7 of the Canadian Charter of Rights and Freedoms which provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." In addition to Purcell, supra he relies upon the decision of the Ontario Court of Appeal in Regina v. Rowbotham et al. (1988), 41 C.C.C. (3d) 1, a criminal case, and the decision of the Supreme Court of Canada in New Brunswick (Minister of Health and Community Services) v. G.(J.) [J.G.], [1999] 3 S.C.R. 46, a civil case.
[19] There is no question that Mr. Muse is entitled to be represented by counsel. The question is whether he is entitled to have the state pay for it. It is also important to keep in mind what is, and what is not, before the Court. He is not charged with a crime. He is convicted. He has been ordered deported. The law gives no leeway, except that the Minister's Delegate is required to make a final determination of risk to his well being should he return to Somalia. All that is at issue is whether he should be held in detention, continually subject to reviews, pending that determination. More specifically, he has been ordered released. Will the Minister obtain leave for judicial review and, if so, will judicial review be granted? There is nothing novel or complicated in these issues.
[20] Robotham, supra recognized that an accused may have a right to state-funded counsel in criminal proceedings if: (a) indigent, (b) not eligible for legal aid, (c) he lacks the ability to represent himself adequately and (d) is involved in a serious and complex legal proceeding which affects his liberty.
[21] Let us assume that New Brunswick v. G.(J.), supra extends the same principle to civil proceedings.
[22] I am not satisfied that Mr. Muse is indigent. He has friends who are ready to provide his bail. Not only had he had legal representation in the past, but also following the first dismissal of this application very competent counsel appeared on his behalf. Whether that counsel was paid for by Mr. Muse's friends, or whether he was acting in the great tradition of the bar, is not before the Court.
[23] As to his eligibility for legal aid, the Legal Services Society of British Columbia wrote to him re "Judicial Review of Bail Decision." That is all that is at issue here. The Society stated its immigration funding was limited and it "can only make referrals in cases where the applicant faces danger if returned to his country of origin." That issue is not before the Court at this time. The Society added "Furthermore, your family paid counsel for your bail application and posted $7,500 bail, so you appear to have access to funds to retain counsel."
[24] There is no evidence whatsoever that Mr. Muse is unable to represent himself adequately.
[25] Finally, the proceeding is not complex. If time had been devoted to answering the Minister's application for leave and for judicial review, rather than to state funding, a decision as to whether or not to grant leave would already have been delivered.
[26] This case is unlike Purcell, supra where a novel point was in issue.
[27] The case is much closer to the decision of the Federal Court of Appeal A.B. v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 14 (QL). That case, like this, was one in which provincial legal aid, in that case Ontario, was available but insufficient to satisfy the demands of the applicant. Funding is limited. Funding priorities are a matter of policy. This Court has no jurisdiction to instruct the Legal Services Society of British Columbia how to allocate its cash-strapped resources. However, this Court can say that section 7 of the Charter does not require a federal minister to provide public funds for Mr. Muse to pay counsel. The right to counsel is not absolute. The state need not fund Mr. Muse within the context of the application currently before the Court.
ORDER
[28] The motion is dismissed.
(Sgd.) "Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4468-05
STYLE OF CAUSE: THE MINISTER FOR PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
- and -
MOHAMUD HASSAN MUSE
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 6, 2005
REASONS FOR ORDER AND ORDER: HARRINGTON J.
APPEARANCES:
Mr. R. Keith Reimer FOR APPLICANT
Mohamud Hassan Muse ON HIS OWN BEHALF
SOLICITORS OF RECORD:
Mr. John H. Sims, Q.C. FOR APPLICANT
Deputy Attorney General of Canada
N/A FOR RESPONDENT