Date: 20031110
Docket: IMM-8670-03
Citation: 2003 FC 1326
Toronto, Ontario, November 10th, 2003
Present: The Honourable Mr. Justice Russell
BETWEEN:
LEIB WALDMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is a motion for an order staying an order for surrender of the Applicant to the United States pending an application for leave and judicial review.
[2] The motion was originally due to be heard on November 10th, 2003 in Toronto but was heard on an urgent basis by conference call on November 8th, 2003.
[3] The Minister of Justice ordered the Applicant's unconditional surrender to the United States under the Extradition Act on April 30, 1999.
[4] The Applicant's appeal and application for judicial review of the Minister's decision were heard together before the Ontario Court of Appeal on August 9, 2001. Both were dismissed.
[5] The Applicant sought leave to appeal the Ontario Court of Appeal judgment to the Supreme Court of Canada and also filed a motion at the Supreme Court of Canada to adduce new evidence.
[6] The leave application and the motion to adduce new evidence were dismissed by the Supreme Court on April 11, 2002 without reasons.
[7] The Applicant then made a further attempt to persuade the Minister of Justice to reconsider the surrender decision to extradite him to the United States. By letter dated March 17, 2003 the Minister of Justice declined to reconsider the Applicant's extradition.
[8] The Applicant then made an application for judicial review of the decision of the Minister of Justice not to reconsider in the Ontario Court of Appeal.
[9] The Ontario Court of Appeal dismissed the Applicant's application for judicial review.
[10] Having exhausted his remedies under the Extradition Act, the Applicant has now turned to the Immigration and Refugee Protection Act ("IRPA").
[11] He has made an application from within Canada on humanitarian and compassionate grounds. A decision on this application is still pending.
[12] The Applicant has also requested that a pre-removal risk assessment be done with respect to the United States and Romania.
[13] There is an outstanding deportation order against the Applicant but it has not been acted up and the focus of the Canadian authorities has been extradition under the Extradition Act.
[14] This matter has a long, complex and voluminous history that is set out in the materials filed by the Applicant and the Respondents. There appears to be no disagreement between the parties as regards the relevant background facts that have led to the present motion.
[15] For the purpose of this stay application, suffice to say that the Applicant is subject to both a deportation order under IRPA and a surrender order under the Extradition Act. The Applicant believes that such a circumstance allows this Court the jurisdictional competence to deal with this motion for a stay as well as the underlying judicial review application.
[16] The issues which the Applicant raises are:
1. Whether his s. 7 Charter rights to life, liberty and security of the person are violated because he is being extradited without a proper pre-removal risk assessment done by competent authorities, as there are no procedural safeguards, nor a fair process in the Extradition Act obligating a competent decision maker to consider and assess evidence relating to the risk to a person's life and security of person in the destination country; and
2. Whether a stay of removal is warranted in light of the fact that there has been no proper pre-removal risk assessment done with respect to the Applicant's risk to his life and security of the person if removed to the United States and Romania?
[17] At the hearing of this matter on November 8th, 2003 the Applicant elaborated upon his written argument and pointed out that, in a case such as this and where a valid deportation order exists, extradition will amount to de facto deportation, and deportation cannot occur under IRPA unless and until the safeguards of IRPA are engaged and a valid risk assessment is done. The engagement of IRPA in this way brings the Minister of Immigration into the picture and establishes the jurisdiction of this Court to hear and adjudicate upon the issues raised.
[18] The Applicant argues, essentially, that the Extradition Act is deficient in that it does not provide the same, or adequate, risk assessment safeguards when compared with the safeguards available under IRPA and it should make no difference to an individual's s. 7 Charter rights whether their removal from Canada is by way of extradition or deportation.
[19] While there may well be significant merit in this argument, there are, nevertheless, serious difficulties in the way of this Court acceding to the Applicant's request under the present motion.
[20] To begin with, in my opinion, extradition of the Applicant will not give rise to a de facto deportation that will then bring IRPA into play.
[21] Section 240 of the Immigration and Refugee Protection Regulations ("IRPA Regulations") deals with when a removal order is enforced. It is enforced, for instance, under subsection (c) when the foreign national "departs from Canada." But section 240 clearly contemplates, in my opinion, that the departure from Canada must occur in consequence of the execution of the removal order itself because the section refers to the enforcement of the removal order either voluntarily by the foreign national or by the Minister of Immigration.
[22] If the extradition order in enforced against the Applicant in this case, it will be enforced by the Minister of Justice and it will place the Applicant outside of Canada. Being outside of Canada may well give rise to consequences under IRPA in relation to how the Applicant might return. But the Applicant will have been placed outside of Canada not because he has voluntarily left, and not because the Minister of Immigration has enforced a removal order against him; he will be outside of Canada because the Minister of Justice has extradited him.
[23] In my opinion, extradition in the case at bar is clearly not de facto deportation under IRPA and hence neither the Minister of Immigration or the jurisdiction of this court are engaged in the extradition process that the Minister of Justice intends to carry out.
[24] The judgment of Teitlbaum J. In Garcia v. Canada (Minister of Justice) [1997] F.C.T. No. 453 at para.25, although pre-dating our present statutory regime on these matters, appears to me to be clear authority that this Court does not have jurisdiction to hear an application for judicial review of a surrender decision of the Minister of Justice under theExtradition Act " or issue interim relief pursuant to that application." That this is still the law would appear to be obvious from the wording of section 57(1) of our present Extradition Act.
57. (1) Despite the Federal Court Act, the court of appeal of the province in which the committal of the person was ordered has exclusive original jurisdiction to hear and determine applications for judicial review under this Act, made in respect of the decision of the Minister under section 40.
[25] This is why the Applicant's travails, to date, have been focussed in the Ontario Court of Appeal.
[26] In the recent decision of Gibson J. In Froom v. Canada (Minister of Justice) (T.D.) [2003] 3 F.C. 268, [2002] F.C.J. No 1725. 2002 FCT 1278, the position of this Court as regards surrender orders under the Extradition Act was made very clear at paragraph 15:
It is to be noted that subsection 57(1) of the Extradition Act ousts the jurisdiction of this Court to judicially review a decision of the Minister under the section 40 of the Act and vests that jurisdiction in the court of appeal of the appropriate province.
[27] In accordance with the dicta of Teitelbaum J. In Garcia supra, I am of the opinion that this court also lacks the jurisdiction to hear motions for interim relief in relation to a section 40 surrender order.
[28] The Applicant seeks to circumvent these difficulties by arguing that he is not seeking judicial review of the surrender order and that his purpose is to prevent removal from Canada before a proper risk assessment is done in accordance with the safeguards contained in the IRPA.
[29] However, the injunctive relief requested in this motion is to "stay the order for surrender to the United Stated...." and is thus a request that this Court intervene in an extradition process that has been going on for some time now in the Ontario Court of Appeal and the Supreme Court of Canada and over which, in my opinion, this Court has no jurisdiction. It is the surrender order that is being acted upon to remove the Applicant from Canada and it is against the surrender order that the Applicant seeks relief.
[30] The fact that the Applicant may have initiated proceedings that bring IRPA into play (a H & C application, a request for a pre-removal risk assessment, a request for a declaration that a proper risk assessment should be done before he leaves Canada and that his section 7 Charter rights have been ignored) does not, in my opinion, confer a jurisdiction upon this Court to deal with a s. 40 surrender order under the Extradition Act in the way requested by the Applicant.
[31] The gravamen of the Applicant's complaint is that the Extradition Act is deficient in that it fails to incorporate safeguards available under IRPA to protect the section 7 Charter rights of someone who is being removed from Canada. This criticism may or may not be justified, but it does not provide a legal basis for this Court to interfere in the extradition process that the Applicant, after going through the Ontario Court of Appeal on several occasions, and even asking for leave to appeal to the Supreme Court of Canada, now finds himself facing.
[32] In summary, then, the motion for a stay is denied because:
1. This Court lacks jurisdiction to grant the relief requested; and
2. The Applicant raises no serious issue in accordance with Toth tri-partite test and the related jurisprudence; and
3. The Applicant has failed to convince me that he faces irreparable harm if extradited to the United States in that the evidence he presented of such harm remains in the realm of speculation.
ORDER
THIS COURT ORDERS that the motion for a stay is dismissed.
"James Russell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8670-03
STYLE OF CAUSE: LEIB WALDMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
THE ATTORNEY GENERAL OF CANADA
Respondents
DATE OF HEARING: NOVEMBER 8, 2003
PLACE OF HEARING: OTTAWA, ONTARIO
DATED: NOVEMBER 10, 2003
REASONS FOR ORDER
AND ORDER BY: RUSSEL J.
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Mary Matthews
For the Respondents
SOLICITORS OF RECORD: Lorne Waldman
Waldman and Associates Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
For the Respondents
FEDERAL COURT
Date: 20031110
Docket: IMM-8670-03
BETWEEN:
LEIB WALDMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
AND ORDER