Date: 20030617
Docket: IMM-3728-00
Citation: 2003 FCT 751
Ottawa, Ontario, this 17th day of June 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
XIAO DONG LIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This motion arises within the context of an application for judicial review that, according to the respondent, should not be heard or decided. Three weeks prior to the hearing of the matter, the respondent filed a motion for an order consenting to the judicial review, asking that the decision under review - namely, the decision of an immigration enforcement officer not to defer the removal of Mr. Liang - be quashed, and requesting that the matter be returned for redetermination by a different officer.
[2] Mr. Liang, however, wishes to have a full hearing and determination on his application for judicial review and, accordingly, opposes the respondent's motion. While the respondent's motion was originally made in writing under Rule 369, I directed the parties to make oral submissions on the matter. I then adjourned the hearing on the judicial review application pending disposition of the motion.
[3] The original concern giving rise to the application for judicial review was that the officer had failed to consider the risk to Mr. Liang's life if he were returned to China. More particularly, while he denies any criminal wrongdoing in China, he fears that he will be tried and prosecuted on false charges there and will be subject to the death penalty. The original written submissions on the application for judicial review (dated November 2, 2000) complained that "there has been no weighing and assessing of the risk to the Applicant upon return to China". Further, "the removals officer failed to exercise her jurisdiction to consider whether or not there should be a proper assessment of risk and balancing before the decision to execute the removal order." Invoking the Canadian Charter of Rights and Freedoms, the submissions concluded that "given the fact that there was no proper and reasonable assessment of risk to the Applicant, it would be a violation of section 7 to send the Applicant back" to China.
[4] Clearly, the original proceedings in this case arose from a concern about the absence of an assessment of the risk to Mr. Liang and the potential violation of his right to life, liberty and security of the person under s. 7 of the Charter. That was in the year 2000.
[5] Two intervening developments have affected the context and, in turn, the content of these proceedings. First, the Supreme Court of Canada decided the cases of United States of America v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, and Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72. These cases dealt with the impact of the Charter in respect of extradition to face the death penalty (Burns, supra), and deportation where there was a risk of torture (Suresh, supra; Ahani, supra). They have obvious significance to these proceedings. Second, in 2002, the Immigration Act , R.S.C. 1985, c. I-2, was replaced by the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The new legislation specifically requires an assessment of personal risk, of the nature originally sought in these proceedings, before a person can be removed from Canada.
[6] In his further memorandum (dated April 28, 2003), Mr. Liang now submits, referring to the Supreme Court's jurisprudence, that "the Charter precludes the scheduling of removal if a person is at risk of the death penalty." An officer has "an obligation to defer removal and to not schedule any such further removal until such time as the evidence disclosed that there was no risk of the death penalty being imposed." Mr. Liang also seeks a declaration from the Court as to the effect of s. 7 of the Charter on the removal of persons who may be subject to the death penalty. Further, a notice of constitutional questions was filed indicating Mr. Liang's intention to challenge the constitutional validity of numerous provisions of the Immigration and Refugee Protection Act.
[7] With the passage of nearly three years since these proceedings began, the issues and arguments have expanded. The question is - how should the Court deal with the Minister's consent to the application for judicial review in such circumstances?
[8] In most cases, the Minister's consent to an application for judicial review will, in itself, render the proceedings moot. The Court must then decide whether it should exercise its limited discretion to decide the issues anyway: Khalil v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1266, [2001] F.C.J. No. 1727 and Chakra v. Canada (Minister of Citizenship and Immigration), 2002 FCT 112, [2002] F.C.J. No. 136. The issue in this motion is whether the situation should be any different when there has been a significant evolution in the legal foundation for the application for judicial review.
[9] The Minister's consent amounts to a concession that the officer should have deferred the removal of Mr. Liang so that an assessment of his personal risk could be carried out. As such, it also serves to dissolve the main issue of controversy between the parties in the application for judicial review. True, it does not give Mr. Liang all the relief that he is now seeking, but that does not mean that the main issue remains alive. In my view, the case is moot because events subsequent to the commencement of this application have resulted in a situation where "no present live controversy exists which affects the rights of the parties" (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342).
[10] The respondent also argues that the new Act gives Mr. Liang what he was originally looking for - an assessment of his personal risk if he were sent back to China. The Act now sets out a process for pre-removal risk assessment (ss. 96, 97, 112, 113) and the Immigration and Refugee Protection Regulations provide an accompanying stay of removal until the risk assessment is completed (s. 232). For his part, Mr. Liang argues that the pre-removal risk assessment will probably not help him much because it does not apply to punishment imposed by way of lawful sanctions (s. 97(1)(b)(iii)) and it will certainly not yield a declaration regarding the interpretation of s. 7 rights which he is now seeking.
[11] The existence of outstanding issues and forms of relief is relevant to the question whether the matter should be heard and decided even though it is moot. According to Borowski, supra, there are three factors that should be considered:
. whether the parties retain an adversarial stake in the issues;
. whether the issues are important enough to justify the judicial resources necessary to decide the case in a way that would have a practical effect on the rights of the parties; and
. whether the Court would be departing from its traditional role in adjudicating disputes.
As in Chakra, supra, I find that the second factor is determinative here.
[12] These proceedings have evolved from their original scope and foundation. Mr. Liang had hoped they would provide a forum for the determination of constitutional issues of considerable breadth. Still, nothing can change the fact that we are dealing with an application for judicial review of an enforcement officer's narrow discretion. If this motion were denied and the application for judicial review was heard, it is unlikely that a judge would find it to be a proper forum for determining the broad Charter issues Mr. Liang raises. For one thing, the application could be decided on much narrower grounds and, as such, any judge hearing it would naturally be reluctant to address constitutional issues that were superfluous to the result.
[13] Second, in my view, the constitutional issues are simply not "ripe". A pre-removal risk assessment may well yield a conclusion that Mr. Liang should not be removed. If it does not, the Minister may still decide not to remove Mr. Liang. Another officer may conclude that a removal order should not be enforced. As Dawson J. said in Chakra, supra, it is "speculative to assume that the result of the redetermination will be negative" (para. 17). Determination of the Charter issues, if necessary at all, should wait.
[14] Third, the factual record in this matter is scant. There was very little evidence before the enforcement officer. Mr. Liang has attempted to supplement the record by filing an affidavit with exhibits from his parallel refugee claim proceedings. Admissibility of the affidavit is contested by the respondent on the grounds that the judicial review must be based solely on the evidence before the officer. Without the affidavit, there is little on which a proper constitutional analysis could be based.
[15] Accordingly, this motion is granted. I find this application for judicial review to be moot and I decline to address the outstanding issues.
ORDER
IT IS HEREBY ORDERED that:
1. The motion is granted.
2. The application for judicial review is allowed. The hearing now scheduled for July 10, 2003 is cancelled.
3. The decision of G. Farrauto communicated to the applicant on July 14, 2000 refusing to defer the applicant's removal is set aside.
4. The matter is referred back to the respondent to be considered and determined.
5. No order as to costs.
"James W. O'Reilly"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS OF RECORD
DOCKET: IMM-3728-00
STYLE OF CAUSE: XIAO DONG LIANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JUNE 11, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE O'REILLY
APPEARANCES BY:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Barrister and Solicitor
Jackman, Waldman & Associates
281 Eglinton Ave. East
Toronto, Ontario M4P 1L3 FOR THE APPLICANT
Tel.: (416) 482-6501; Fax: (416) 489-9618
Morris Rosenberg
Deputy Attorney General of Canada
The Exchange Tower
130 King Street West, Suite 3400, Box 36
Toronto ON M5X 1K6 FOR THE RESPONDENT
Tel.: (416) 952-3223; Fax: (416) 954-8982