Date: 19990510
Docket: IMM-2511-98
BETWEEN:
ESHO YOUSIF
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
[1] These reasons arise out of an application for judicial review of a direction under subsection 27(3) of the Immigration Act1 that an inquiry be held to determine if the applicant is a person described in paragraph 27(2)(a) of the Immigration Act by reason of being a member of a class of persons described in subparagraph 19(1)(c.1)(i) or (ii) or subparagraph 19(2)(a.1)(i) of that Act. The direction was signed on behalf of the Deputy Minister of Citizenship and Immigration on the 6th of April, 1998.
[2] The relevant portions of subsection 27(3) of the Immigration Act (the "Act") read as follows:
| (3) Subject to subsection (3.1) and any order or direction of the Minister, the Deputy Minister, on receiving a report pursuant to subsection (1) or (2), shall, if the Deputy Minister considers it appropriate to do so in the circumstances, forward a copy of that report to a senior immigration officer and may ... (b) in any case, direct that an inquiry be held. |
(3) Sous réserve du paragraphe (3.1) et des arrêtés ou instructions du ministre, le sous-ministre, s'il l'estime justifié dans les circonstances, transmet à un agent principal un exemplaire du rapport visé aux paragraphes (1) ou (2) et_ ... b) dans tous les cas, le sous-ministre peut ordonner à l'agent principal de faire tenir une enquête. |
Subsection 27(3.1) of the Act is not relevant for the purposes of this matter. The relevant portions of subsection 27(2) of the Act reads as follows:
| (2) An Immigration officer or a peace officer shall, unless the person has been arrested pursuant to subsection 103(2), forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a person in Canada, other than a Canadian citizen or permanent resident, is a person who (a) is a member of an inadmissible class, other than an inadmissible class described in paragraph 19(1)(h) or 19(2)(c); ... |
(2) L'agent d'immigration ou l'agent de la paix doit, sauf si la personne en cause a été arrêtée en vertu du paragraphe 103(2), faire un rapport écrit et circonstancié au sous-ministre de renseignements concernant une personne se trouvant au Canada autrement qu'à titre de citoyen canadien ou de résident permanent et indiquant que celle-ci, selon le cas_: a) appartient à une catégorie non admissible, autre que celles visées aux alinéas 19(1)h) ou 19(2)c); ... |
The relevant portions of subsections 19(1) and (2) of the Act read as follows:
| 19. (1) No person shall be granted admission who is a member of any of the following classes: ... (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or (ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be; ... (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: ... (a.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or ... except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be; |
| 19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_: ... c.1) celles dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_: (i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction, (ii) soit commis un fait " acte ou omission " qui constitue une infraction dans le pays où il a été commis et qui, s'il était commis au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, d'un emprisonnement maximal égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis la commission du fait; ... (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: ... a.1) sont des personnes dont il y a des motifs raisonnables de croire qu'elles ont, à l'étranger_: (i) soit été déclarées coupables d'une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d'une loi fédérale, par mise en accusation, d'un emprisonnement maximal de moins de dix ans, ... sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu'au moins cinq ans se sont écoulés depuis l'expiration de toute peine leur ayant été infligée pour l'infraction, |
[3] The applicant seeks the following relief:
| - A writ of prohibition against the respondent prohibiting the respondent from proceeding with the inquiry that has been directed against the applicant or issuing any further directions for inquiry against the applicant or removing him pursuant to a removal order; |
| - An order setting aside the direction that an inquiry be held that is the subject of the application for judicial review; |
| - Solicitor and client costs; and |
| - Such further and other relief as this Court determines to be just. |
[4] The applicant arrived in Canada presumably from the United States, although that is not clear from the material before the Court. The respondent apparently considers him to be a person other than a Canadian citizen or permanent resident. He was first made the subject of a direction for an inquiry by direction dated the 27th of November, 1997. That direction was based on allegations that he had been convicted in the State of Illinois of residential burglary, burglary, robbery, possession of cannabis, and unlawful use of a firearm. Further, it was alleged that in the same state, he had committed the crime of murder.
[5] The inquiry was opened on the 4th of December, 1997, was adjourned to January, 1998 and later to the 24th of February and then the 24th of March. It remained open following the 24th of March of that year. Counsel retained by the applicant in connection with the inquiry sought disclosure of information and materials constituting the respondent's case but counsel alleges that much material remained undisclosed. In the result, an application to stay the inquiry was brought.
[6] On the 26th of March, 1998, the respondent's representative at the inquiry requested that the direction for inquiry be withdrawn. Apparently he or she had been advised of the commencement of extradition proceedings against the applicant. He or she wrote:
| It would appear that these proceedings [the extradition proceedings] take priority over the Immigration Inquiry therefore the Commission [the respondent] is requesting the withdrawal of our order for Inquiry. |
[7] No notice of this request for withdrawal was provided to counsel for the applicant.
By fax message dated the 3rd of April, 1998, the adjudicator presiding at the inquiry advised counsel for the applicant that:
| The Inquiry Concerning Esho Yousif Is Now Otherwise Terminated. |
[8] Thus, the direction that an inquiry be held that is here at issue is the second direction for inquiry with respect to the applicant. It was not in dispute before me that the report on which it is based is in all substantive respects identical to the report underlying the first direction for inquiry.
[9] Underlying this application for judicial review is the applicant's allegation that the decision of the respondent to reinstitute the immigration inquiry constitutes an abuse of process and is oppressive in all of the circumstances of this matter. In the result, counsel for the applicant urges that this Court has an inherent power to stay the inquiry proceedings.
[10] Counsel for the applicant referred the Court to many authorities, both criminal and civil, regarding the authority of courts to stay proceedings that constitute an abuse of process and are oppressive. All of those authorities, save for those that are in the immigration sphere and more or less parallel to the circumstances of this matter, are distinguishable for a single reason: section 34 of the Immigration Act specifically authorizes sequential inquiries. That section reads as follows:
| 34. No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103. |
34. Les décisions rendues en application de la présente loi n'ont pas pour effet d'interdire la tenue d'une autre enquête par suite d'un autre rapport fait en vertu de l'alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d'une arrestation et d'une garde effectuées à cette fin en vertu de l'article 103. |
[11] In Rabbat v. Canada (Minister of Employment and Immigration)2, Mr. Justice Denault wrote at page 50:
| ... section 34 of the Act excludes the principle of res judicata for all practical purposes in the specific context of the sections to which it refers. |
Res judicata was a principal element of the submissions of counsel before me on the subject of abuse of process. He urged that since the first inquiry had started before it was terminated and since, at the time of termination there was insufficient evidence before the adjudicator presiding at the inquiry to establish the respondent's case, the subject matter of the inquiry was res judicata because termination effectively constituted an adjudication on the merits. Whatever the merits of that argument in other circumstances, on the facts before me, Mr. Justice Denault's reasoning constitutes a complete answer to it. Mr. Justice Denault continued at page 51:
| As can be seen, the legislator wished to expressly exclude the plea of res judicata in an immigration matter, at least within the limited scope of this section [section 34], ... . |
and at page 52:
| In their comments on section 34, the writers have recognized that the legislator appears to have wished to exclude the res judicata defence, but they have quickly raised the spectre of abuse by the immigration authorities, and taken the opportunity of the decision in Okolakpa to limit its scope.3 |
[12] The Rabbat decision was confirmed on appeal4. In very brief reasons, Mr. Justice Pratte, for the Court, wrote:
| As we indicated during argument, we do not see any merit in the appellant's first contention based on the doctrines of "res judicata" and merger by judgment. Even if that contention were otherwise well-founded (a point on which we express no opinion), it would find its answer in section 34 of the Immigration Act, 1976. |
[13] In Estrada v. Minister of Employment and Immigration5, in reasons issued very shortly before the Rabbat decision was confirmed by the Federal Court of Appeal, Mr. Justice Pinard wrote at page 319:
| The fact that the Minister then decided to withdraw the Direction, in order to terminate the inquiry, and the fact that the Minister allowed Direction for inquiry to be made and based on the same facts, although under a different paragraph of section 27(2) of the Immigration Act, 1976, certainly do not constitute a mere sham and do not even demonstrate a clear case of abuse of process, ... |
[14] In Cortez v. Canada (Secretary of State)6, Mr. Justice Rouleau, after quoting section 34 of the Act, wrote at page 13:
| Therefore, s. 34 clearly excludes res judicata in the specific context of s. 27 of the Act... |
[15] Finally, in Halm v. Canada (Minister of Employment and Immigration)7, Mr. Justice Rothstein, as he then was, wrote at pages 569 and 570:
| I have already indicated that I do not infer from the evidence that the Minister was acting with improper motive in the bringing of a second deportation inquiry after Reed J. issued her reasons setting aside the May 28, 1993 deportation order. Further, there is a legislative basis for further inquiries to be held. |
After quoting section 34 of the Act, Mr. Justice Rothstein continued:
| On its face, the legislation provides for what was done in this case; the commencement of a second inquiry leading to a report and an order for the applicant's deportation. |
| Nonetheless, counsel for the applicant argues that section 34 does not authorize a second inquiry when grounds for that inquiry are known and could have been advanced at the earlier inquiry. However, I see nothing in section 34 that implies that it is not applicable in these circumstances. Section 34 is cast in broad terms. |
Here, as in Halm, counsel for the applicant alleged improper motive on the part of the respondent in terminating the first inquiry and then, very shortly after the termination, commencing a second inquiry, on the same grounds. Such an allegation is pure speculation . It has no basis in evidence.
[16] Based upon the foregoing authorities, this application for judicial review will be dismissed.
[17] Counsel for the applicant urged before me that section 34 of the Act must be read as being consistent with section 7 of the Canadian Charter of Rights and Freedoms8 and that, when so read, it should have no application on the facts of this matter. This argument was not raised in any of the written material before the Court and thus counsel for the respondent had no notice of it; neither did the Attorneys General of the Provinces although, arguably, notice is required to be given to them under section 57 of the Federal Court Act9. Whether or not notice to the Attorneys General was required, I am satisfied that, to entertain the argument without notice to the respondent, would be substantially unfair. In the result, I have not taken this argument into account.
[18] On the 23rd of July, 1998, Mr. Justice Teitelbaum of this Court considered an interlocutory application in this matter "pending an application for leave and judicial review". His order was in the following terms:
| For the written reasons provided, the application for a writ of prohibition and for injunction is denied. |
Subsequently, leave was granted and this application for judicial review proceeded. While I have remained conscious of the order of Mr. Justice Teitelbaum, I have, for the purpose of these reasons and my decision, regarded it as purely interlocutory in nature and not binding on me regarding the requested relief of an order of prohibition.
[19] Finally, I feel compelled to comment on the action on behalf of the respondent in
requesting and obtaining termination of the first inquiry without notice of the request being given to counsel for the applicant in circumstances where the respondent was well aware that the applicant was represented. It is most unfortunate that no notice was given. Much of what has ensued in this Court might have been avoided or at least minimized if common courtesy had been extended.
[20] A draft of these reasons was provided to counsel for consideration of whether or not this matter raises a serious question or questions of general importance that would warrant certification pursuant to subsection 83(1) of the Act. Counsel for the applicant recommended certification of the following four questions:
| a) Is there any limitation to the holding of further inquiries pursuant to Section 34 of the Immigration Act, and if so what is that limitation? |
| b) Does the Federal Court, Trial Division, possess either inherent jurisdiction or jurisdiction which is necessarily incidental to carrying out its functions to prohibit the holding of further inquiries, and if so under what circumstances? |
| c) Is Section 34 of the Immigration Act consistent with Section 2 of the Canadian Bill of Rights and in particular Section 2(e) or Section 5 thereof? |
| d) Is Section 34 of the Immigration Act consistent with the Canadian Charter of Rights and Freedoms and in particular Section 7 thereof? |
Counsel for the respondent recommended against certification of any question.
[21] In Liyanagamage v. Canada (Minister of Citizenship and Immigration)10, Mr. Justice Décary wrote:
| In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application... but it must also be one that is determinative of the appeal. [citation omitted] |
[22] I am satisfied that none of the questions proposed by counsel for the applicant would be determinative of an appeal of my decision in this matter. The questions proposed are more in the nature of reference questions and are therefore inappropriate for certification. In the result, no question will be certified.
[23] There will no order as to costs.
____________________
Judge
OTTAWA, ONTARIO
May 10, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2511-98
| STYLE OF CAUSE: ESHO YOUSIF |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: WEDNESDAY, APRIL 21, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: GIBSON J.
DATED: MONDAY, MAY 10, 1999
APPEARANCES: Ms. Mary Jarrell
Mr. Paul Calarco
For the Applicant
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD: Mary Jarrell & Paul Calarco
Barristers & Solicitors
439 University Avenue
Suite 780
Toronto, Ontario
M5G 1Y8
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990510
Docket: IMM-2511-98
Between:
ESHO YOUSIF
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2, as amended.
2 [1986] 2 F.C. 46 (F.C.T.D.).
3 See Okolakpa v. Minister of Manpower and Immigration [1977] 1 F.C. 437 (T.D.). Mr. Justice Denault distinguishes Okolakpa by noting that the predecessor section to section 34, which was considered in that case, was "quite different".
4 See [1987] F.C.J. No. 22 (F.C.A.), (Q.L.).
5 (1987), 8 F.T.R. 317 (F.C.T.D.).
6 (1994), 74 F.T.R. 9 (F.C.T.D.).
7 [1996] 1 F.C. 547 (F.C.T.D.).
8 Part I of the Constitution Act, 1982 (R.S.C. 1985, Appendix II No. 44), being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11.