Date: 20070327
Docket: IMM-78-07
Ottawa, Ontario, March 27, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant is the subject of a proceeding to vacate his permanent residence status on the grounds of an alleged misrepresentation at the time of his entry into Canada. In summary, the Applicant is said to have not disclosed his role in a crime against humanity.
[2] The Applicant has sought, and now obtained, leave for judicial review of a decision of the Immigration and Refugee Board (IRB) dated December 20, 2006. The precise effect of that IRB decision is a matter of dispute between the parties, a matter to be resolved on judicial review.
[3] The vacation proceedings have been on-going and are scheduled to resume on April 7, 2007.
[4] It is the Applicant’s position that the IRB has now admitted exculpating evidence from several witnesses despite the fact that the Applicant will not be able to cross-examine those witnesses. It is alleged that the government has determined that it is too costly to require the appearance of the witnesses.
[5] The Applicant claims that the decision to admit this evidence is contrary to an earlier IRB decision confirming his right to cross-examine (and the fundamental importance of that right), that the decision allows the government to split its case (the Applicant having already addressed all his evidence but his own), permits the Respondent to continue its efforts of non-disclosure. It is his position that the government’s conduct has been an abuse of process in which the IRB has become a participant by virtue of its December 20, 2006 decision.
[6] The Respondent acknowledges that there have been disclosure problems but these have now been cured. The Respondent further argues that the December 20, 2006 decision merely allows the transcript of witness’ interviews to be filed and that it is still within the jurisdiction of the IRB to accord the evidence such weight as may be appropriate. Therefore, the hearing should continue until final disposition at which point any harm to the Applicant could be better determined.
[7] This is an unusual case involving what is arguably an interlocutory decision by the IRB. However, the importance of the decision is fundamental to the case and, without it, arguably there is no case against the Applicant. It is also important because it is said to be an abuse of process and part of a continuing abuse perpetrated by the Respondent and its officials particularly the Royal Canadian Mounted Police. Nevertheless, a stay application must be assessed against the criteria in Toth v. Canada (Minister of Employment and Immigration) (1988) 86 NR 302 (FCA).
Serious Issue
[8] On this first branch of the Toth test, leave for judicial review has been granted. However, in my view, when the issue is staying an on-going hearing, this threshold must be examined more closely than in most other stay applications.
[9] Abuse of process is an easy allegation to make; it is more difficult to establish. It cuts to the very integrity of the judicial or quasi-judicial process. Before an interim stay of proceeding is granted, the Court must be satisfied that something more than a “not frivolous and vexatious” criteria has been met.
[10] In the unique circumstances of this case, given the acknowledgement of disclosure problems and acceptance of the history of the matter (not its characterization), I am satisfied that this burden has been met. In so saying, I am not in any way suggesting that the Applicant has made out his case on judicial review. Much more argument, analysis and thought are required before the conclusion can be reached.
Irreparable Harm – Balance of Convenience
[11] These issues are sufficiently intertwined to be considered together. However, the separate criteria must each be met.
[12] The Respondent makes the telling point that the harm to the Applicant can only be known, with certainty, when the IRB makes its final decision. However, there is significant harm to an individual who is the victim of an abuse of process by the authorities of this country. There is also harm to the public interest if an abuse of process is permitted to continue. This is a type of harm which cannot be repaired.
[13] The public interest is an aspect which the Court must consider in this type of application. The public interest is an aspect which must be addressed, either as part of the “irreparable harm” aspect of the stay analysis or the “balance of convenience” aspect. The importance of the public interest was highlighted in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paras. 65-68:
65 Some general guidelines as to the methods to be used in assessing the balance of inconvenience were elaborated by Beetz J. in Metropolitan Stores. A few additional points may be made. It is the "polycentric" nature of the Charter which requires a consideration of the public interest in determining the balance of convenience: see Jamie Cassels, "An Inconvenient Balance: The Injunction as a Charter Remedy", in J. Berryman, ed., Remedies: Issues and Perspectives, 1991, 271, at pp. 301-5. However, the government does not have a monopoly on the public interest. As Cassels points out at p. 303:
While it is of utmost importance to consider the public interest in the balance of convenience, the public interest in Charter litigation is not unequivocal or asymmetrical in the way suggested in Metropolitan Stores. The Attorney General is not the exclusive representative of a monolithic "public" in Charter disputes, nor does the applicant always represent only an individualized claim. Most often, the applicant can also claim to represent one vision of the "public interest". Similarly, the public interest may not always gravitate in favour of enforcement of existing legislation.
66 It is, we think, appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. "Public interest" includes both the concerns of society generally and the particular interests of identifiable groups.
67 We would therefore reject an approach which excludes consideration of any harm not directly suffered by a party to the application. Such was the position taken by the trial judge in Morgentaler v. Ackroyd (1983), 150 D.L.R. (3d) 59 (Ont. H.C.), per Linden J., at p. 66.
The applicants rested their argument mainly on the irreparable loss to their potential women patients, who would be unable to secure abortions if the clinic is not allowed to perform them. Even if it were established that these women would suffer irreparable harm, such evidence would not indicate any irreparable harm to these applicants, which would warrant this court issuing an injunction at their behest. [Emphasis in original.]
68 When a private applicant alleges that the public interest is at risk that harm must be demonstrated. This is since private applicants are normally presumed to be pursuing their own interests rather than those of the public at large. In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the court of the public interest benefits which will flow from the granting of the relief sought.
[14] In Charkaoui (Re), [2006] C.C.S. No. 9409, [2006] F.C.J. No. 514, 2006 FC 410, the Supreme Court confirms the high duty of fairness owed where a process may lead to the removal from Canada to a place where a person’s life or freedom would be threatened. Given the allegations in this case against the Applicant, a Rwandan citizen, Rwanda could be such a place.
[15] There is a public interest in maintaining the confidence in the legal process and in allowing it to operate without undue interference. There is a public interest in ensuring public faith in the integrity of the legal process which is put at risk when abuse of process claims are made.
[16] As to stays for abuse of process, in United States of America v. Tollman, [2006] O.J. No. 3673 the Ontario Superior Court of Justice recognized that both the common law power to prevent abuse that undermined the integrity of the judicial system and that power under the Charter to control abuse that affected individual rights, have been merged.
[17] In R. v. O’Connor, [1995] S.C.J. No. 98 at para. 59, the Supreme Court confirmed the residual discretion in a Court to prevent oppressive and vexatious proceedings. The Applicant has yet to establish that the proceedings have that characteristic but it is at least an arguable issue.
[18] Given the relatively brief nature of the stay requested and the fact that there has already been a suspension of hearing since at least December, 2006 a further brief delay will not materially prejudice either party whereas a continuance of proceedings may well cause prejudice to both the individual and to the public interest by continuing a process which may be found to be abusive.
[19] Therefore, an interim stay of proceedings will be granted until the final disposition of the judicial review. The stay will be conditional on the requirement that the parties will cooperate to bring the matter on for hearing in a reasonably expeditious manner to be set by the Court.
ORDER
THIS COURT ORDERS that the Immigration and Refugee Board proceedings are stayed until the final disposition of the Applicant’s judicial review.
THIS COURT FURTHER ORDERS that the parties are to cooperate to bring the judicial review on for hearing in a reasonably expeditious manner including providing the Judicial Administrator with a proposed schedule as provided for in the Order granting leave.
"Michael L. Phelan"