Federal Court Decisions

 

Date: 20110216

Docket: IMM-3740-10

Citation: 2011 FC 185

Ottawa, Ontario, February 16, 2011

PRESENT:     The Honourable Mr. Justice Kelen

 

 

BETWEEN:

	THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
		Applicant
	and
	COLLINS KWESI GYEKYE
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application by the Minister for judicial review of a decision of the Immigration Division of the Immigration and Refugee Board (the Board), dated June 29, 2010, ordering the respondent’s release from immigration detention pending deportation, pursuant to section 58 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act).

 

[2]               The application is now moot because the respondent was deported on November 9, 2010. Nevertheless, the applicant requests that this Court exercise its discretion to hear the application.

FACTS

Background

[3]               The respondent is a citizen of Ghana who arrived in Canada in 1994, at the age of 11, and became a permanent resident. In the ensuing years he amassed a substantial record of criminal convictions, including for theft, assault, and failing to comply with probation, recognisance and appearance orders.

 

[4]               On January 5, 2005, an inadmissibility report was written pursuant to section 44(1) of the Act based on the respondent’s conviction of the crime of mischief over $5000, under section 430(3) of the Criminal Code of Canada. On November 24, 2005, the respondent was found inadmissible in his admissibility hearing and a deportation order was issued.

 

[5]               The respondent appealed the deportation order. On April 25, 2008, the Immigration Appeals Division of the Immigration and Refugee Board found that the order was valid in law but granted a four-year stay, with conditions, on the basis of humanitarian and compassionate considerations.

 

[6]               On January 12, 2010, the respondent was convicted and incarcerated under section 348(1)(b) of the Criminal Code of Canada for breaking and entering with intent.

 

[7]               Section 68(4) of the Act provides that a stay of the Immigration Appeal Division will cancel by operation of law if the subject is convicted of one of the offences referred to in subsection 36(1) of the Act. On April 28, 2010, the stay was terminated by operation of law as a result of the respondent’s conviction, and his appeal was terminated. The 2005 deportation order therefore became enforceable and reactivated.

 

[8]               The respondent was incarcerated as an “immigration hold” on June 19, 2010. On June 22, 2010, the Board held a detention review hearing at which the respondent was ordered to be held in custody because he was a flight risk.

 

[9]               On June 29, 2010, a second detention review hearing was held, at which the Board ordered that the respondent be released from custody pending his removal. It is this decision that is before this Court.

 

[10]           The applicant immediately sought and received a stay of the June 29 release order, which was subsequently extended three times, to last until August 24, 2010.

 

[11]           On July 27, 2010, a third detention review hearing was held and the Board determined that the respondent should be kept in custody.

 

[12]           The Board conducted three more detention review hearings, on August 24, September 22, and October 20, 2010. At all three hearings the respondent was ordered to remain in custody.

 

[13]           The respondent was removed on November 9, 2010.

 

 

LEGISLATION

[14]           Section 58 of the Act provides for the release or detention of persons detained under Part 1, Division 6 of the Act:

 

 

[15]           Section 245 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), sets out the prescribed factors to be taken into account regarding whether a detained person constitutes a flight risk:

 

[16]           Section 248 of the Regulations sets out further factors that should be considered before deciding between ordering detention or release:

 

ISSUE

[17]           The Court considers the following issues relevant in this case:

1.   Should the Court exercise its discretion to hear a moot case?

 

ANALYSIS

Issue 1:           Should the Court exercise its discretion to hear a moot case?

[18]           Because the respondent was removed from Canada on November 9, 2010, the issue of whether the June 29, 2010, detention review decision of the Board should be upheld is moot.

 

[19]           The applicant submits, however, that an alleged error committed by the Board warrants consideration by this Court despite being moot.

 

[20]           The applicant requests the Court exercise its discretion regarding the following issue:

The Minister is very concerned about the Immigration Division’s decision to refuse to allow the representative for the Minister at the detention review hearing an opportunity to cross-examine the bondsperson and wishes to obtain guidance from the Federal Court on this issue.

 

[21]           The test for when a court should consider a moot case was stated by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342. The Supreme Court set out a two-step test to determining whether a case is moot. First, the Court must determine whether the court’s decision will affect the rights of the parties. In this case, the applicant acknowledges that this element is not present, because the respondent’s rights will not be affected by this Court’s decision. Second, the court must determine whether it should nevertheless exercise its discretion to hear the case:

¶16.     The approach in recent cases involves a two-step analysis.  First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic.  Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case.  The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear.  In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test.  A court may nonetheless elect to address a moot issue if the circumstances warrant.

 

 

 

[22]           In Borowski, the Court said a court should consider the following factors:

1.   If the dispute is rooted in the adversary system. Per Borowski at paragraph 31:

. . . It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. . . .

2.      If hearing the case is in the interests of judicial economy:

                                                               i.      cases where the “court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action” (Borowski at paragraph 35);

                                                             ii.      cases which

are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly. . . . The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.” (Borowski at paragraph 36); and

                                                            iii.      cases which “raise an issue of public importance of which a resolution is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law” (Borowski at paragraph 37).

 

[23]           The applicant submits that the Court should exercise its discretion in this case because detention review decisions are evasive of review.

 

[24]           The applicant submits that “whether the minister has a right to cross-examine a potential bondsperson” is a question of general public importance.

 

[25]           The Court does not accept the applicant’s submissions. Most significantly, the dispute before this Court is not rooted in the adversarial system. To the contrary, the respondent has made no representation whatsoever before this Court. This Court also lacks the benefit of any submissions made by the respondent at earlier hearings, because the respondent has never been represented by counsel and has consistently demonstrated a misunderstanding of the operation of the legal system. Nor are there any interveners or other parties before this Court who may offer submissions. As a result, the Court is asked to determine the questions before it having representations of only one party.

 

[26]           Second, the Court accepts that detention review hearings often occur prior to anticipated removals that most detainees are removed before judicial review applications of their detention hearings have time to proceed.

 

[27]           However, the Court is aware that the Federal Court has been able to judicially review a detention decision on an expedited basis within 30 days so that the Court could rule on the detention decision before it became moot. In Canada (Citizenship and Immigration) v. B157, 2010 FC 1314, Justice de Montigny conducted a judicial review of a decision to release the applicant in that case, and granted the application. The judicial review application was heard on an expedited basis as a result of an order made at the time that a stay of the detention release decision was granted.

 

[28]           Finally, the question that the Court is asked to decide – “whether the applicant had a right to question the potential bondsperson” has already been decided by this Court in Canada (Minister of Citizenship and Immigration) v. Ke (2000), 188 F.T.R. 91 (F.C.) per Reid J.  In that case an adjudicator under the old Act had refused to allow the Minister to cross-examine a potential bondsperson. The Court found that a breach of natural justice occurred with respect to the denial of the right to cross-examine a bondsperson on the facts of that particular case:

¶6.       As I understand the Minister’s argument, it is that a breach of natural justice occurred in failing to allow for cross-examination of the bondsperson because a decision-maker is required to base his or her decision on the best evidence available, and because a party to an adjudication is entitled to test the evidence, central to the decision, presented by the opposing party.

 

¶7.       I am not prepared to accept the proposition that in all cases an adjudicator is required to allow for cross-examination of a bondsperson. I am prepared, however, to accept that in this particular case, the failure to do so did constitute a breach of the rules of fairness and natural justice.

 

[29]           Thus, this Court has previously determined this issue. In the case at bar, the potential bondsperson was the detainee’s mother, who was according to the evidence of the detainee prepared to put up $2000, which was, sadly, her life’s savings. In the end, the release from detention order was stayed and the detainee was deported. No bond was required. A decision about whether to allow cross-examination is for the hearing officer to make on the facts which this Court will only review on a standard of reasonableness. This issue is not any more involved than this, and does not warrant the Court’s discretion to hear a moot application. Accordingly, this application for judicial review will be dismissed.

JUDGMENT

 

THIS COURT’S JUDGMENT is that:

The application for judicial review is dismissed.

 

 

 

“Michael A. Kelen”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-3740-10

 

STYLE OF CAUSE:                          The Minister of Public Safety and Emergency Preparedness v. Collins Kwesi Gyekye

 

 

 

PLACE OF HEARING:                    Ottawa, Ontario

 

DATE OF HEARING:                      February 7, 2011

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          KELEN J.

 

DATED:                                             February 16, 2011

 

 

 

APPEARANCES:

 

Ms. Amy King Mr. John Loncar	FOR THE APPLICANT
No appearance	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Myles J. Kirvan, Deputy Attorney General of Canada Ottawa, Ontario   Self-represented

FOR THE APPLICANT       FOR THE RESPONDENT