COURT OF APPEAL FOR ONTARIO
Thorburn, Pomerance and Rahman JJ.A.
BETWEEN
Mahir Yahya Sharif
Applicant (Appellant)
and
Minister of Public Safety and Emergency Preparedness
Respondent (Respondent)
Gib van Ert, Dahlia Shuhaibar and Jessica Chandrashekar, for the appellant
Bernard Assan and Nicola Shahbaz, for the respondent
Maureen Silcoff and Erin Simpson, for the intervener, the Canadian Association of Refugee Lawyers
Heard: February 18-19, 2026
On appeal from the order of Justice Charles T. Hackland of the Superior Court of Justice, dated September 18, 2025, with reasons reported at 2025 ONSC 5221.
OVERVIEW
1The appellant, Mahir Yahya Sharif, is a refugee from Somalia. He pled guilty to a sexual assault committed while he was an involuntary patient in a mental institution. He was found inadmissible to Canada for serious criminality. Thereafter, he was ordered to be removed to Somalia.
2Mr. Sharif filed a complaint with the United Nations Human Rights Committee (“UNHRC”). The UNHRC asked Canada to hold Mr. Sharif’s removal in abeyance while his communication to the UNHRC was under consideration. The Minister of Public Safety and Emergency Preparedness (“the Minister”) refused the UNHRC’s request on behalf of Canada. Mr. Sharif was advised of the Minister’s decision by email.
3Mr. Sharif brought an application for judicial review of the Minister’s refusal before the Superior Court. The application judge dismissed Mr. Sharif’s application, holding that the Minister was under no duty to provide reasons, and that the decision itself was reasonable.
4Mr. Sharif appeals the application judge’s dismissal of his application for judicial review. “The Minister seeks to uphold the application judge’s order dismissing the judicial review by arguing that the Superior Court lacked jurisdiction to decide the application, and in the alternative, the matter was not justiciable. In any event, the Minister submits that the decision was reasonable.1
5The issues to be addressed are, (i) whether the Superior Court had jurisdiction to review Canada’s decision, (ii) whether Canada’s decision was justiciable, and if so, (iii) whether Canada’s decision was reasonable.
6For reasons that follow, I agree with the application judge that the Superior Court had jurisdiction, the matter is justiciable, and the Minister was not required to give reasons.
7The current state of Canadian law provides that the rule that a person shall not be returned to a place where they would be at risk of persecution is subject to an exception for those who constitute a danger to the Canadian public.
8The Danger Opinion was a key document in which the risk that Mr. Sharif faces in returning to the country where he fled persecution, was weighed against the risk he poses to the Canadian public. The Danger Opinion did not contain all necessary information regarding Mr. Sharif’s serious mental health condition and its heightened impact on the risks he faces if deported to Somalia.
9However, in addition to the Danger Opinion, the Minister was also provided with a psychiatric report dated May 7, 2025, submissions about the dangers of sending Mr. Sharif back to Somalia given his mental health condition, as well as Mr. Sharif’s submission to the UNHRC. Therefore, Canada had all the necessary information to make a reasonable decision in response to the UNHRC. Nor is there a breach of Canada’s existing international obligations given the Supreme Court’s interpretation of the law of refoulement in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.
10For these reasons, I would dismiss the appeal.
THE EVIDENCE
11Before conducting my analysis of the issues, I will provide an outline of Mr. Sharif’s history and the legal steps he has undertaken since receiving the removal order.
a. Mr. Sharif’s History
12Mr. Sharif is a refugee from Somalia. He, his mother, and his siblings fled to Egypt after family members were attacked and killed by militia believed to belong to the radical Islamic group Al-Shabaab.
13In 2013, the UN High Commissioner for Refugees granted Mr. Sharif and his mother refugee status under the 1951 Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”) and in 2019, they were resettled in Canada as permanent residents. Other family members are also resident in Canada.
14Mr. Sharif’s native language is Arabic, his English is limited, and he does not speak Somali.
15Mr. Sharif has significant mental health challenges and has been involuntarily hospitalized in Canada three times for extended periods. Mr. Sharif committed the index offence of sexual assault while he was involuntarily hospitalized at a psychiatric unit in Medicine Hat in June 2022. Subsequently, Mr. Sharif was involuntarily admitted to the Regional Psychiatric Centre in Saskatoon from November 2024 to May 2025 and was at an in-patient psychiatric unit at Oakville Trafalgar Hospital from July to August 2025.
16In August 2022, Mr. Sharif pleaded guilty to sexual assault, trafficking fentanyl, mischief, theft, and resisting arrest.
17On October 4, 2023, the Immigration and Refugee Board found him inadmissible to Canada for serious criminality due to his conviction for sexual assault. As a result, he lost his permanent resident status under s. 46(1)(c) of the Immigration and Refugee Protection Act, S.C.2001, c. 27 (“IRPA”).
18Since he was a refugee, he could not be removed from Canada forthwith. Section 115(1) of IRPA states that a Convention refugee “shall not be removed from Canada to a country where they would be at risk of persecution”. Section 115(2)(a) establishes an exception in cases involving a person “who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada”.
b. The Danger Opinion
19On May 13, 2024, the Canada Border Services Agency (“CBSA”) notified Mr. Sharif of its intention to seek a Danger Opinion from the Minister of Immigration, Refugees and Citizenship in accordance with s. 115(2) of IRPA.
20In August 2024, through legal counsel, Mr. Sharif provided submissions regarding his strides in rehabilitation and strong support system in the community. Mr. Sharif also outlined the risks he faces on removal to Somalia, and the humanitarian and compassionate considerations that favour his non-removal despite his inadmissibility.
21On January 8, 2025, while being held at the Regional Psychiatric Centre of Saskatchewan, Mr. Sharif received a letter from the CBSA giving him notice of a “final opportunity” to provide further submissions and evidence. This time, the letter attached a draft Danger Opinion and hundreds of pages of material.
22In March 2025, Mr. Sharif was given a three-month extension to respond. Previous counsel no longer represented Mr. Sharif. He contacted legal aid but was unable to obtain new counsel.
23It appears that Mr. Sharif was not able to respond to CBSA’s request for additional submissions as he was unrepresented at the time, did not understand English well enough to reply, and was involuntarily hospitalized.
24On May 7, 2025, Mr. Sharif underwent a preliminary assessment of his mental health condition by correctional medical staff. The assessment concluded that he was experiencing psychotic symptoms and hallucinations and that “[o]ver the years he seems to have struggled with substance use, schizophrenia (query substance induced) and depression”. The author of the report noted that since Mr. Sharif had been in custody and had likely not used any street drugs, “it is safer to consider his diagnosis to be schizophrenia that is worsened by substance use.” The report was addressed to the CBSA.
25On May 13, 2025, the Danger Opinion was finalized.
26The Danger Opinion contains extracts from several police records. In one record made after the sexual assault, the author states that, “a doctor overseeing patients on the psychiatric wing of Medicine Hat Hospital, provided officers with a letter outlining his concerns for Mahir and the wanting of Mahir to be sent [to] a forensic psychiatric institution.”
27The 31-page Opinion contains only one paragraph which directly addresses Mr. Sharif’s mental health. It provides as follows:
Mr. Sharif was said to have suffered from mental health issued [sic] he had required medical attention and hospitalization because of hallucinations. I have considered the mental health of Mr. Sharif’s [sic] as it evolved throughout the years. The criminal report profile dated Novembre [sic] 2022 indicates that there was no formal diagnosis in place at that time and it was unknown if incidents of psychosis were due to a mental health condition or if it was drug induced psychosis, as Mr. Sharif consumed various substances.
28The Danger Opinion acknowledged that “there is less than a reasonable chance that Mr. Sharif will face a risk of persecution if returned to Somalia”. However, it found no substantial grounds to believe that he would face torture, the death penalty, a risk to his life, or cruel or unusual treatment or punishment. Accordingly, it concluded that Mr. Sharif’s removal was in accordance with the principles of fundamental justice and would not violate s. 7 of the Charter.
29The author of the Danger Opinion concluded that the danger Mr. Sharif poses to Canada, outweighs the risks he faces in Somalia such that he fits within the exception to the general bar on the removal of refugees under s. 115(2)(a) of IRPA.
30The Danger Opinion did not address: (a) the seriousness of Mr. Sharif’s mental health condition and how those with mental health issues are treated in Somalia; (b) whether Somalia would allow his re-entry as CBSA internal notes indicate that Somalia does not allow for the return of anyone with a diagnosed mental health issue; (c) Somalia’s corresponding refusal to issue him travel documents; (d) the CBSA’s decision not to accompany him to Somalia, contrary to CBSA policy, and (e) evidence about Al-Shabaab posing a significant and growing security risk in Mogadishu contrary to the author’s conclusion that the group has not had a presence in Mogadishu in over a decade and poses minimal risk.
31Moreover, while the Danger Opinion noted that “[n]o submissions in response to the notice [of January 8, 2025] have been received” from Mr. Sharif, it did not consider that Mr. Sharif was involuntarily held in a mental health institution, had no legal counsel, and did not speak English well enough to respond.
c. Arrangements for Mr. Sharif’s Removal
32By May 26, 2025, Mr. Sharif retained new counsel who advised his removal officer by letter that,
Mr. Sharif has a lengthy history of psychiatric illness for which he has been hospitalized. His most recent hospitalization began on 29 November 2024 after a serious decline in his mental health while serving a Federal sentence. He was detained in a psychiatric facility on an involuntary psychiatric hold due to the severity of his mental health. … The entire legal basis of his admission to the psychiatric facility is that he lacked capacity to appreciate his medical circumstances to such a serious degree that his legal rights to consent to medical treatment were lawfully removed.
33After a detention review hearing where Mr. Sharif’s lawyer again highlighted “real issues about the impact of his mental health” in oral submissions, the CBSA proceeded to schedule Mr. Sharif’s removal to Somalia for June 30, 2025.
34On June 27, 2025, Mr. Sharif received notice that his removal to Somalia had been postponed to July 11, 2025.
35On July 2, 2025, Mr. Sharif filed a complaint with the UNHRC under art. 2 of the Optional Protocol to the International Covenant on Civil and Political Rights 1966, T.S. 1976 No. 47 (“Optional Protocol”). The UNHRC requested that Canada suspend his removal pending consideration of the complaint through an Interim Measures Request (“IMR”): Rules of Procedure of the Human Rights Committee, CCPR/C/3/Rev.12, r. 94.
36On July 22, 2025, the Minister decided to proceed with Mr. Sharif’s removal to Somalia. CBSA advised Mr. Sharif by email on July 23 that a stay of removal under s. 50(e) of the IRPA had not been issued.
d. Mr. Sharif’s Diagnosis
37On July 31, 2025, Mr. Sharif was formally diagnosed with schizophrenia, with clear psychotic symptoms requiring lifelong treatment.
THE LEGAL PROCEEDINGS
a. The Federal Court Proceeding
38On May 27, 2025, Mr. Sharif filed an application for leave and for judicial review of the Danger Opinion in the Federal Court. At the time this appeal was heard, the application was pending. On May 15, 2026, the Federal Court dismissed his application for leave and for judicial review.
39Mr. Sharif had brought a motion to stay his deportation pending the application for leave. The motion was dismissed on June 26, 2025: Sharif v. Canada (Minister of Citizenship and Immigration), 2025 FC 1152. In so doing, the Federal Court held at para. 38, that Mr. Sharif “was provided opportunities to make submissions on those materials [in the Danger Opinion]. He was informed of the case he had to meet and provided with opportunities to respond.”
40The record before this court suggests otherwise.
41As noted above, Mr. Sharif was suffering serious mental health issues and was involuntarily hospitalized for much of the Danger Opinion process. He was unrepresented and did not understand English well enough to be able to respond.
b. The UNHRC Communication
42Mr. Sharif provided a lengthy communication to the UNHRC that contained 25 attachments. In it, Mr. Sharif claimed that:
(a) the Danger Opinion was procedurally unfair because he was unrepresented and involuntarily hospitalized during most of the Danger Opinion process and therefore unable to participate or respond to the draft;
(b) the Danger Opinion failed to recognize that Mr. Sharif has a serious mental health condition, and as a result, would face heightened risks upon deportation;
(c) other relevant risks were not properly assessed in the Danger Opinion including country conditions in Somalia, and reports that the Al-Shabaab militia has executed people deported from Western countries on suspicion of espionage; and,
(d) there was a profound and immediate risk to his safety en route to, or upon arrival in Mogadishu, given Somalia’s refusal to issue him travel documents, the failure of the CBSA to confirm that Somalia will allow his entry on the “single journey documents” it has issued, and its decision not to accompany him all the way to Somalia (contrary to CBSA policy).
43He argued that there was credible evidence that his deportation would deprive him of rights enumerated under the International Covenant on Civil and Political Rights 1966, [1976] Can T.S. no. 47 (“ICCPR”). In particular, he submitted that his mental health condition, minority clan membership, lack of family support, inability to speak Somali, status as a deportee, threats from Al-Shabaab and clan militias, and prevailing country conditions would compromise his right not to be arbitrarily deprived of life under art. 6(1), as well as his right not to be subject to cruel, inhuman or degrading treatment or punishment under art. 7 of the ICCPR.
44In support of his request for an IMR, Mr. Sharif noted that he had exhausted all available domestic remedies to pause the deportation. Canada scheduled his removal despite his then-pending application for leave for judicial review, and the Federal Court refused to stay the deportation until a decision was rendered. In light of the irreparable harm he would suffer if deported, and the fact that his leave application would be rendered moot by his deportation, Mr. Sharif requested that the UNHRC ask Canada to refrain from removing him pending the resolution of the communication. Relatedly, Mr. Sharif argued that his lack of recourse to a meaningful appeal mechanism in the face of refoulement itself constituted a violation of his right to an effective remedy under art. 2(3) of the ICCPR.
45On July 8, 2025, the UNHRC sent a confidential diplomatic note to the Permanent Representative of Canada to the UN Office at Geneva containing the IMR. The Committee asked Canada to place Mr. Sharif’s deportation in abeyance while his complaint was considered.
c. The Minister’s Decision
46The CBSA’s policy position is that, although IMR requests made by human rights treaty bodies asking Canada to refrain from removing individuals are not binding on Canada, those requests should be considered in good faith and given serious consideration. Accordingly, “for most cases, Canada will not remove individuals while an interim measures request remains in effect.”
47On July 22, 2025, after receiving the complaint and the request from the UNHRC to hold the deportation order in abeyance pending further consideration of Mr. Sharif’s complaint, the Minister elected not to accede to the UNHRC’s request and directed the CBSA to proceed with Mr. Sharif’s deportation.
48The Minister gave no reasons and produced no record.
THE SUPERIOR COURT APPLICATION
49Mr. Sharif brought an urgent application before the Superior Court for judicial review of the Minister’s decision under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
a. Jurisdiction
50Canada argued that the Superior Court lacked jurisdiction to hear the matter. The application judge disagreed. He held that the Minister’s decision not to accede to the UNHRC’s request was made in the exercise of the Crown prerogative over international relations and rejected Canada’s characterization of the decision as a pure exercise of the Minister’s statutory responsibilities under the IRPA.
51The application judge explained that s. 18(1) and s. 2(1) of the Federal Courts Act, R.S.C. 1985, c F-7, and the case law, together instruct that provincial superior courts and the Federal Court have “concurrent jurisdiction” to hear “matters involving the Charter and matters concerning the exercise of pure Crown prerogative”: Black v. Canada (Prime Minister) (2001), 2001 CanLII 8537 (ON CA), 54 O.R. (3d) 215 (C.A.), at para. 76; Ahani v. Canada (Attorney General) (2002), 2002 CanLII 23589 (ON CA), 58 O.R. (3d) 107 (C.A.), at para. 21 (“Ahani ONCA”), aff’d 2002 SCC 2, [2002] 1 S.C.R. 72; Toussaint v. Canada (Attorney General), 2023 ONCA 117, at paras. 102-105.
52He therefore determined that the Superior Court had jurisdiction to hear the matter.
b. Justiciability
53In the alternative, Canada took the position that the Minister’s decision was not justiciable. The application judge also rejected this submission.
54He noted that justiciability exists on a sliding scale. Matters of high policy may not be justiciable but matters which directly implicate the rights and expectations of individuals are reviewable: Black, at paras. 52-54.
55The application judge noted the personal risks implicit in Mr. Sharif’s removal to Somalia. He concluded that although the Minister’s decision was made in the Crown prerogative, it was nevertheless justiciable, because judicial review is appropriate where an individual like Mr. Sharif is “affected in a highly material way by government action”. He therefore proceeded to conduct a judicial review of the Minister’s decision.
c. Reasonableness of the Decision
56The application judge found that the decision was reasonable and that the Minister was not required to give reasons. Moreover, he held at para. 48 of his reasons that:
The Minister’s subsequent decision to proceed with Mr. Sharif’s removal, as an expressed departure from normal practice but without any explanation for such departure, must be taken to have been made with full knowledge of the Danger Opinion and the conclusions therein and the Federal Court’s decision which followed the judicial review of the Danger Opinion.
57Contrary to the application judge’s apparent finding, the Federal Court had not judicially reviewed the Danger Opinion.2
58He also found that the Minister received Mr. Sharif’s communication to the UNHRC, before deciding not to accede to the IMR request, and that, “This court makes the assumption this information was duly considered by the Minister.”
59He ordered a stay of Mr. Sharif’s removal for 30 days. A further order was made by a single judge of this court, staying the deportation until the decision in this appeal has been rendered.
THE POSITIONS OF THE PARTIES
60The parties agree that on an appeal of a judicial review, this court “steps into the shoes” of the Superior Court and performs a de novo review: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 36.
61Mr. Sharif appeals the conclusion that the Minister’s refusal to accede to the UNHRC’s request was reasonable.
62The Minister submits that the decision was reasonable. The Minister also cross-appeals and submits that the application judge erred in his conclusions on jurisdiction and justiciability.
63The Minister stresses that Mr. Sharif is free to review decisions made under the IRPA, including the decision not to issue a stay under s. 50(e), through the Federal Court, or to request that the delegate who prepared the Danger Opinion reconsider their decision based on new evidence.
64The Canadian Association of Refugee Lawyers delivered submissions on the challenge of appealing the negative stay decision to the Federal Court of Appeal given the statutory bar on appealing an interlocutory order under s. 72(2)(e) of the IRPA.
THE LAW REGARDING REMOVAL OF REFUGEES
65Before addressing the parties’ submissions on each issue, it is important that I review the international legal principles which Mr. Sharif contends ought to have constrained the Minister’s decision.
66Article 33 of the Refugee Convention generally precludes the removal of refugees to countries where they are at risk of persecution for reasons of race, religion, nationality, membership in a social group or political opinion.
67It is reinforced by art. 7 of the ICCPR which provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, as well as art. 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 (“CAT”).
68In addition to international treaties and conventions, the Supreme Court has held that the principle of non-refoulement is generally recognized as a norm of customary international law: Mason, at para. 108.
69Article 33(2) of the Refugee Convention, however, provides an exception for “a refugee … who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
70Similarly, s. 115 of the IRPA provides that,
(1) A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.
(2) Subsection (1) does not apply in the case of a person
(a) who is inadmissible on grounds of serious criminality and who constitutes, in the opinion of the Minister, a danger to the public in Canada
71The analysis to be conducted in such cases is set out in Suresh, at para. 58:
[T]he appropriate approach is essentially one of balancing. The outcome will depend not only on considerations inherent in the general context but also on considerations related to the circumstances and condition of the particular person whom the government seeks to expel. On the one hand stands the state’s genuine interest in combatting terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public security. On the other hand stands Canada’s constitutional commitment to liberty and fair process. This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere.
72The Supreme Court in Suresh went on to state, at paras. 76-77 that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice” and that while the Minister must exercise his discretion, “the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.”
73More recent case law suggests that the exception to non-refoulement should be limited. In Nevsun Resources Ltd v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166, at para. 103, Abella J. for the majority, quoting approvingly from J. Currie et al., International Law: Doctrine, Practice, and Theory, 2nd ed. (Toronto: Irwin Law, 2014) at p. 627, held that “the prohibition against cruel, inhuman, and degrading treatment has been described as an ‘absolute right, where no social goal or emergency can limit [it].’” In Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, at para. 2, Kasirer J. for the court described non-refoulement, as “the cornerstone of the international refugee protection regime”.
ANALYSIS OF THE FIRST ISSUE: JURISDICTION
74The first issue to be addressed is whether the application judge erred in holding that the Superior Court has jurisdiction to hear this matter.
a. What is Crown Prerogative?
75Crown prerogative refers to “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 34. The prerogative power over foreign affairs is well established: Khadr, at para. 35; Black, at para. 31.
76In Black, at paras. 25, 74-76, Laskin J.A. held that:
… clear and explicit statutory language is required to oust the jurisdiction of provincial superior courts, which, unlike the Federal Court, are courts of inherent general jurisdiction: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193, where Iacobucci and Major JJ. wrote at p. 474 S.C.R.:
And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.
77As such, applications for judicial review of exercises of Crown prerogative can be heard by superior courts as they have inherent jurisdiction to hear all matters other than those specifically excluded by statute. See also: Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at pp. 471-72.
78Crown prerogative can, however, be limited or displaced by statute: Ross River Dena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816, at para. 54, quoting from P. W. Hogg and P. J. Monahan, Liability of the Crown (3rd ed. 2000), at p. 17. However, the Crown prerogative is only displaced “to the extent that the statute does so explicitly by necessary implication”: para. 54. See also the Interpretation Act, R.S.C. 1985, c. I-21, s. 17, which provides that the Crown’s authority is binding “except as mentioned or referred to in the enactment.”
79In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 42-46, the Supreme Court held:
[A]ny derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language”.
The oft-repeated incantation of the common law is that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; .... [i]n contrast, the jurisdiction of the Federal Court is purely statutory.
Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. … However, the onus lies here on the Attorney General to establish the existence and extent of such a transfer of jurisdiction in statutory terms that are clear, explicit and unambiguous.
b. Federal Court Act Removal of the Superior Court’s Jurisdiction over Crown Prerogative
80Section 18(1)(a) of the Federal Courts Act, gives the Federal Court exclusive original jurisdiction to grant declaratory relief against any “federal board, commission or other tribunal.”
81However, s. 2 provides that the terms “federal board, commission or other tribunal” include only those exercises of Crown prerogative “established by or under an order made under the prerogative of the Crown” (emphasis added).
82Therefore, exercises of Crown prerogative not made by or under an order are not displaced by the statute. In Black, this court held that absent an “order made pursuant to” Crown prerogative, the exercise of a prerogative power is reviewable in the provincial superior courts. Laskin J.A. offered the following explanation at paras. 71, 74-75:
[T]he phrase "by or under an order made pursuant to a prerogative of the Crown" admits of two possible interpretations.
A fair reading of s. 2(1) suggests that "an order made pursuant to" modifies both "by" and "under". This interpretation is supported by the parallel structure of s. 2(1) -- "by or under an Act of Parliament" and "by or under an order made pursuant to a prerogative of the Crown". The former phrase must mean by an Act of Parliament or under an Act of Parliament; similarly, the latter phrase must mean by an order made pursuant to a prerogative of the Crown or under an order made pursuant to a prerogative of the Crown.
[C]lear and explicit statutory language is required to oust the jurisdiction of provincial superior courts, which, unlike the Federal Court, are courts of inherent general jurisdiction. The Supreme Court of Canada articulated this principle in Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193, where Iacobucci and Major JJ. wrote at p. 474 S.C.R.:
And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged. [Emphasis added.]
83Given the Superior Court’s inherent jurisdiction, where Parliament has left a "gap" in its grant of statutory jurisdiction to the Federal Court, the institutional and constitutional position of provincial superior courts warrants granting them residual jurisdiction over federal matters: Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, at paras 25-26.
84In Hupacasath First Nations v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737, at para. 52, Stratas J.A. for the court, held that Parliament intended to give the federal courts jurisdiction over all federal decision makers. He held that, while provincial superior courts have inherent jurisdiction, this “raises no valid reasons… for jealously protecting the jurisdiction of provincial superior courts as against the Federal Court”: para. 53. Stratas J.A. suggested that the textual analysis of s. 2(1) of the Federal Courts Act in Blackmay have been overtaken by subsequent developments in the law of statutory interpretation.
85Since Hupacasath was decided, this court decided Toussaint and upheld the motion judge’s conclusion that the Minister’s decision not to implement a recommendation of the UNHRC was an exercise of Crown prerogative outside the exclusive jurisdiction of the Federal court. I therefore do not accept the Minister’s submission that the Federal Court of Appeal’s decision in Hupacasath (which is not binding on this court in any event) has overtaken Black.
c. Whether the Minister’s Decision is an Exercise of Crown Prerogative within the Jurisdiction of the Superior Court
86The respondent submits that the decision was not an exercise of Crown prerogative, but rather the exercise of a statutory power made pursuant to the IRPA, a federal statute, such that the Superior Court had no jurisdiction to hear an application for judicial review.
87I disagree.
88Federal officers enforce removal orders pursuant to IRPA. Section 115 of IRPA provides that while there is a general bar on removing Convention refugees, a removal order may still be enforced if the individual is inadmissible on grounds of serious criminality and constitutes, in the opinion of the Minister, a danger to the public in Canada.
89Federal officers may also grant an administrative deferral from the enforcement of a removal order pursuant to s. 48(2) of the IRPA, which otherwise requires that removal orders be enforced “as soon as possible”. This provision leaves officers with discretion to delay the enforcement of a removal order: see, for example, Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, at paras. 13‑18, leave to appeal refused, [2016] S.C.C.A. No. 313; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, at para. 50, leave to appeal refused [2019] S.C.C.A. No. 478; Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700, at para. 87, leave to appeal refused [2019] S.C.C.A. No. 105.
90As such, the decision to deport Mr. Sharif, on the basis that he fit within the exception to the general bar on removing refugees under s. 115(2)(a) of the IRPA was a decision made pursuant to federal legislation. It is a decision subject to review within the exclusive jurisdiction of the federal courts.
91However, the decision not to hold Mr. Sharif’s deportation in abeyance at the request of the UNHRC, pending consideration of Mr. Sharif’s complaint, was an exercise of Canada’s Crown prerogative. Like Black, the prerogative was not exercised pursuant to an Act of Parliament or an order made. The decision was made in response to a request from an international body as inToussaint.
92The IRPA does not address the Minister’s response to a diplomatic request from an international organization. The authority to do so does not derive from an Act of Parliament. As noted by the senior litigation advisor at the CBSA, “such requests are not binding on Canada and do not in and of themselves create a stay of removal under IRPA”.
93For these reasons, the Minister’s decision is not within the exclusive jurisdiction of the Federal Court. Pure exercises of prerogative power such as this one are reviewable by the Superior Court.
94Given the inherent jurisdiction of superior courts to review exercises of Crown prerogative unless Parliament has clearly removed that jurisdiction, and because Parliament has not done so here, I agree with the application judge that the Minister’s decision is an exercise of Crown prerogative that is not governed by federal statute. He correctly determined that Superior Court has inherent jurisdiction to hear this matter.
ANALYSIS OF THE SECOND ISSUE: JUSTICIABILITY
95In the alternative, the respondent claims that, the issues engaged are not justiciable as to hold otherwise would risk converting “a non-binding request in a Protocol which has never been part of Canadian law, into a binding obligation enforceable in Canada by a Canadian court”: Ahani (ONCA),at para. 33. The respondent submits that, “it is difficult to see how or why these rights affect the rights or legitimate expectations of individuals like the appellant.”
96Ahani is not determinative of justiciability in this case. First, this court did not specifically address the issue of justiciability or decide that Mr. Ahani’s claim was not justiciable. Second, and more importantly, the grounds for judicial review in Ahani and the relief requested were different. Unlike Mr. Ahani, who asserted a constitutional right to remain in Canada until his international remedies had been exhausted and asserting a legitimate expectation that he would not be deported until the UNHRC had considered his submission, Mr. Sharif seeks a more modest remedy: that is, that the Minister reconsider his decision and provide reasons.
97Justiciability exists on a sliding scale: Lorne M. Sossin and Gerard Kennedy, Boundaries of Judicial Review: The Law of Justiciability in Canada, 3rd ed. (Toronto: Thomson Reuters, 2024), at §6:1.
98In matters of “high policy” like the decision not to go to war, or sign a treaty, government decision-making may be unfettered. However, matters that directly implicate the rights or legitimate expectations of individuals are reviewable given their direct impact on those individuals: Black, at para. 51. The Minister argues that Mr. Sharif has no legal right or legitimate expectation to remain in Canada until the UNHRC provides its views. But as Laskin J.A. noted in Black, while strictly speaking no one has a legal right to a passport or a pardon, both engage important individual interests warranting the supervision of the courts: see paras. 53-55. Furthermore, unlike a decision to sign a treaty or to declare war, this is not a case in which the nature and subject matter are not amenable to the judicial process: Black, at para. 58; Hupacasath,at para. 66.
99The respondent acknowledges that the decision not to hold Mr. Sharif’s refugee removal order in abeyance while his communication to the UNHRC is under consideration is of great importance to the appellant given the serious safety risks he faces if he is returned to Somalia. There are no matters of high policy. Rather, the issues in this case are the timing of Mr. Sharif’s removal, whether the decision to remove him respects applicable legal standards, and whether it affects his safety and perhaps, his life.
100The decision is therefore justiciable as, although it arises in the context of international relations, it directly and profoundly affects the rights, safety, and life of a specific individual and involves the application of legal standards to a specific set of facts.
ANALYSIS OF THE THIRD ISSUE: WHETHER THE DECISION WAS REASONABLE
101Mr. Sharif acknowledges that the UNHRC’s views are not binding as the Optional Protocol was not incorporated into domestic law. Nor does he contest the Minister’s right to exercise his discretion to refuse the IMR request.
102He submits, however, that the Minister’s decision was not reasonable as the Minister provided no reasons for his decision, the material facts articulated in Mr. Sharif’s communication were not addressed, and the Minister’s decision did not comply with the principle of non-refoulement.
a. The Reasonableness Standard
103The more important a decision is to the lives of those it affects, the more stringent the procedural protections will be to ensure that the consequences of a decision are justified in light of the facts and law: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 135.
104The standard of review is reasonableness: Vavilov,at para. 16. The purpose of reasonableness review is to uphold “the rule of law, while according deference to the statutory delegate’s decision”: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 29.
105Where reasons are not provided, a reviewing court must look to the record, from which the court will often uncover a clear rationale for the decision: Baker, at para. 44. Where no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision, the reviewing court must examine the constraints on the decision maker to determine whether the decision is reasonable. The analysis will focus more on the outcome than the reasoning process: Vavilov, at paras. 137-38.
106The burden is on Mr. Sharif to establish that the decision was unreasonable. Reasonableness is “a robust form of review” which depends on sensitivity to legal and factual constraints and requires an appreciation for institutional context and background: Vavilov, at paras. 13, 99-100.
b. Whether Reasons were Required
107Mr. Sharif submits that the principle of responsive justification required the Minister to explain and justify the decision given its particularly harsh consequences to him.
108The Minister submits that there is no right to reasons in this context and that, as a matter of custom, reasons are not provided for IMRs. Moreover, the Minister argues that the principle of responsive justification does not apply, as the decision was issued in response to a request from the UNHRC. Article 4(2) of the Optional Protocol requires Canada to respond to the UNHRC, and not to Mr. Sharif.
109The application judge accepted the Minister’s position that Mr. Sharif was not entitled to the Minister’s reasons for deciding not to accede to the IMR:
This is because Canada’s obligations under the Protocol and international law are not owed to Mr. Sharif personally because Parliament has not incorporated into domestic legislation either the Covenant or the Protocol. Mr. Sharif’s assertion of an enforceable right with obligations stemming from international instruments, in the Minister’s submission, “usurps parliamentary sovereignty as Parliament has never incorporated these into domestic legislation”.
In the Court’s view, the Minister’s position that reasons are not required for the decision to not accede to the UN Committee’s IMR request in this case, is consistent with and supported by the reasons of the Ontario Court of Appeal in Ahani. As noted above, Laskin J.A., observed that by signing the Optional Protocol Canada reserved the right to reject the UN Committee’s views and “reserved the right to enforce its own laws before the Committee gave its views”. The Court ruled an IMR request is not binding on Canada, is not a part of domestic law and Canada is free not to accede to an Interim Measures Request.
The existence of a Crown prerogative arising from the Minister’s interaction with an international body such as the UN Commission, combined with an absence of domestic statutory constraints, make it reasonable for the Minister to adopt a practice of not providing reasons for either acceding or not acceding to an Interim Measures Request from the UN Committee.
110While reasons are generally required when a decision has a significant impact on a party, I agree with the application judge that the Minister was not required to provide reasons for his decision. My reasons are as follows.
111First, Mr. Sharif was not a party to this request. The request was made by an international organization to Canada and Canada’s response was to the international organization. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights: Vavilov, at para. 77. Rule 94 of the Rules of Procedure of the Human Rights Committee indicates that the Committee is to consider the submissions of the state party and the complainant and communicate its views to the individual and the state party concerned. However, there is nothing in the ICCPR, the Optional Protocol, or r. 94 of the UNHRC’s Rules of Procedure of the Human Rights Committee that requires the state party to give reasons for refusing to accede to an IMR.
112Second, in any case, there is no statutory right to reasons because IMRs issued by the UNHRC are not binding in Canadian law. Although the Optional Protocol has been ratified, Parliament has not incorporated the Optional Protocol into domestic legislation such that it does not have domestic effect absent a Charter claim. Canada therefore remains free to decline such requests from an interested third party, such as Mr. Sharif, without providing explanations to the individual concerned.
113Third, the common law duty of procedural fairness does not require reasons, and the Minister advises that its custom is not to provide reasons for declining an IMR request. Consequently, there is no legitimate expectation that reasons will be provided: Baker, at para. 26.
114For these reasons, while the issue is understandably of great concern to Mr. Sharif, I see no error in the application judge’s determination that reasons were not required.
c. Whether the Decision was Reasonable
i. The Parties’ Submissions
115In the alternative, Mr. Sharif submits that the application judge erred in finding the Minister’s decision was reasonable.
116First, Mr. Sharif submits that the Minister’s decision does not properly address the effect of his mental health on his safety and security if removed to Somalia. There is no evidence that the Minister considered the psychiatric report dated May 7, 2025 which was available before the Danger Opinion was finalized and describes Mr. Sharif’s serious mental health issues and need for ongoing medical treatment. The Danger Opinion simply states that “there are no mental or physical health difficulties causing institutional adjustment problems”.
117Mr. Sharif is seriously mentally ill, has been repeatedly confined to psychiatric wards and cannot manage on his own in Canada. Therefore, he argues, that he cannot possibly do so in Somalia—a country where he has no family, does not speak the prevailing language, and from which he has been granted refuge due to his well-founded fear of persecution. He claims that if the Minister had fully appreciated the record before him, “he could only have concluded that Mr. Sharif’s case is not one for which refoulement can possibly be justified—assuming such justification is ever possible.”
118The Minister disputes both the claim that the Minister (i) misapprehended or failed to take into account Mr. Sharif’s situation; or that (ii) he did not make a reasonable decision in accordance with Canada’s legal obligations.
119The Minister advises that, in deciding not to accede to the UNHRC’s request to hold Mr. Sharif’s removal in abeyance, it had before it not only CBSA’s submissions to the delegate and the delegate’s Danger Opinion, but also the information Mr. Sharif provided to the UNHRC to support his request including the May 7, 2025 psychiatric report and submissions on the effect of removal to Somalia for those with serious mental health difficulties.
120With the benefit of all necessary information, Canada decided not to agree to hold Mr. Sharif’s removal in abeyance while the UNHRC considered his complaint.
121Canada did so with knowledge that the ICCPR and Optional Protocol are not incorporated into Canadian law.
ii. The Application Judge’s Conclusion on Reasonableness
122The application judge held that,
While there is no actual record of documentation surrounding the Minister’s decision in this case, there is before the court a record of the Danger analysis process and Danger Opinion and the Record of the Federal Court proceedings.
The record before this court reflects that the Minister received the applicant’s communication to the UN Committee, before the Minister made the decision to not accede to the MIR request [sic]. The Minister previously had the Danger Opinion and the Federal Court proceedings. This court makes the assumption that this information was duly considered by the Minister.
123The application judge concluded that,
… the principles of responsive justification and of non-refoulement … were considered and evaluated by the Minister’s delegate as part of the Danger Opinion Process. ... The Minister’s subsequent decision to proceed with Mr. Sharif’s removal, as an expressed departure from normal practice but without any explanation for such departure, must be taken to have been made with full knowledge of the Danger Opinion and the conclusions therein and the Federal Court’s decision which followed the judicial review of the Danger Opinion. [Emphasis added.]
124The application judge went on to note that Mr. Sharif had made a “thoughtful submission” that the Danger Opinion analysis was inconsistent with the international law of non-refoulement. However, he declined to consider the argument, holding that Mr. Sharif may be able to make this argument before the Federal Court of Appeal in an appeal from the Federal Court’s denial of his stay motion. While interlocutory decisions in immigration matters are normally precluded, appellate review may be available when a case “strike[s] right at the rule of law” (such as a credible allegation of bias against the motion judge, but not an alleged error of law, even an important one), or where the motion judge exercised a power not found in the IRPA: Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144, at para. 19, leave to appeal dismissed [2017] S.C.C.A. No. 379. Moreover, the application judge concluded that non-refoulement had been considered and evaluated as part of the Danger Opinion process.
iii. Analysis of the Issue of Reasonableness
125Where no reasons are given, the reasonableness of the decision must be determined from the record before the court using the surrounding documents and circumstances including any admissible information the applicant for judicial review has been able to obtain: Vavilov, at paras. 137-38; and Portnov v. Canada (Attorney General),2021 FCA 171, [2021] 4 F.C.R. 501, at para. 54.
126It is important to note that this is not a review of the Danger Opinion. Nonetheless, because the Danger Opinion was a significant part of the record before the Minister when he decided to refuse the UNHRC’s request, its contents are properly considered when assessing the reasonableness of the Minister’s decision to refuse the UNHRC request.
127The first question is whether the Minister’s decision was inconsistent with, misapprehended, or failed to account for the concerns raised by Mr. Sharif’s communication to the UNHRC. In my view, it was not.
[128] The Danger Opinion was prepared to address the s. 115(2) IRPA concerns, that is, whether Mr. Sharif constitutes a danger to the Canadian public and if so, whether returning him to Somalia would infringe his right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
129Although information was missing in the Danger Opinion, the Minister also had all the information Mr. Sharif submitted to the UNHRC. His communication to the UNHRC includes information about the effect of Mr. Sharif’s mental health on the decision to remove him and possible consequences, a report about the fate of refugees with mental health conditions like Mr. Sharif’s on deportation, and a legal critique of the Danger Opinion’s failure to grapple with these issues.
130While Mr. Sharif’s formal diagnosis and psychiatric report prepared on July 31, 2025 was not before the Minister, it post-dates both Mr. Sharif’s communication to the UNHRC and his July 22, 2025 decision to refuse the IMR. Judicial review is normally conducted on the record before the decisionmaker: MacKenzie v. Ottawa Community Housing Corporation, 2023 ONCA 43, at fn. 1. While there are some exceptions to this general rule, this does not fall within those exceptions: Association of Universities and Colleges of Canada v. The Canadian Copyright Licensing Agency, 2012 FCA 22, para. 19; Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). Mr. Sharif may however, be entitled to rely on the report if he is ordered to report for removal and challenges the decision.
131The Minister therefore had all relevant information to enable him to consider the relevant factual and legal issues and decide whether to accept the UNHRC request. It cannot be said that the decision was unreasonable on this basis.
132The next question is whether Canada met its legal obligations.
133In Suresh, the Supreme Court considered that the Refugee Convention permits refoulement in limited circumstances subject to art. 33(2) which provides that the benefits of non-refoulement may not be claimed by a refugee “who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”: para. 69. It held that the deportation of refugees subject to the Minister’s discretion through the Danger Opinion process was Charter compliant because that process required that “the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter”: para. 77. The court emphasized that this balancing was informed by the principles of fundamental justice rather than international treaty norms that have not been incorporated into Canadian law by enactment: para. 60.
134Mr. Sharif claims that, notwithstanding the decisions in Sureshand Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72, (“Ahani SCC”), Vavilov required the Minister to consider Canada’s legal obligations under the ICCPR, the Optional Protocol and the customary international law of non-refoulement. The majority in Vavilov held at para. 114,
It is well established that legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with the values and principles of customary and conventional international law”. Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power. [Citations omitted.]
135He submits that because decision-makers can be constrained by international treaties, even those that have not been incorporated into domestic law, the Minister was bound by the prohibitions on refoulement to cruel, degrading or inhuman treatment contained in art. 7 of the ICCPR and that, had the Minister considered Canada’s obligations under the ICCPR, he could only have concluded that Mr. Sharif’s case was not one for which refoulement can possibly be justified.
136I do not agree. I accept that the Minister is required to consider Canada’s international legal obligations: Vavilov, at para. 114; Baker, at para. 70. However, it does not follow that international instruments can create binding domestic obligations when Parliament has expressly chosen not to adopt them. International treaties and domestic legislation are substantively distinct: Canadian Council for Refugees v. Canada (Citizenship and Immigration),at para. 31; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at para. 150.
137While Canada’s commitments under theOptional Protocol are relevant legal constraints on the Minister, neither the UNHRC’s views nor its IMRs are binding: Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426, at para. 36; Ahani (ONCA), at para. 33. The Optional Protocol therefore cannot require Canada to wait until the UNHRC renders its views before enforcing its domestic laws: Ahani (ONCA), at para. 32.
138The Supreme Court in Suresh rejected the argument that the CAT and the ICCPR directly constrain Canadian government action. Canada’s international law obligations inform the interpretation of the Charter and the IRPA, but the principle against non-refoulement is subject to the exception in s. 115(2) of the IRPA which is constitutionally compliant.
139Section 7 of the Charter would, in most cases, prevent the Minister from subjecting someone to refoulement: Suresh, at para. 78. Mr. Sharif did not bring a Charter claim in this court, though he did raise it in his application for leave to the Federal Court. Had he raised the Charter here, he would have been faced with the conclusion of this court in Ahani (ONCA) that the principles of fundamental justice do not include the right to remain in Canada until he has exhausted his international law remedies under the ICCPR and the Protocol: see para. 57, per Laskin J.A. There would therefore have been a risk that Canada would have removed him before his application could be heard.
140The decision to remove Mr. Sharif given his mental health condition and concomitant needs is harsh. There is no dispute that Mr. Sharif was an involuntary patient in a mental hospital at the time he committed the index offence. No evidence was proffered as to the circumstances surrounding his decision to plead guilty. Moreover, he is seriously ill and will require significant long-term care. Somalia has refused to issue him travel documents. The CBSA will not accompany him to Somalia, contrary to CBSA policy, and there is some evidence that the Al-Shabaab militia has considered that people deported from Western countries may be spies and sometimes execute them based on this suspicion. His removal may well result in serious risks to his safety.
141Suresh has been criticized by other apex courts and by the UN itself for permitting exceptions to rights which international law holds to be absolute: Attorney-General v. Zaoui, [2005] N.Z.S.C. 38, at para. 40.
142Canada’s Supreme Court has also recently reiterated that the principle against refoulement is “the cornerstone of the international refugee protection regime” though without overturning Suresh: Mason, at para. 108, per Jamal J. Similarly, Abella J. held in Nevsun, at para. 103, that “the prohibition against cruel, inhuman, and degrading treatment has been described as an ‘absolute right’” which “no social goal or emergency can limit”.
143More recently, in Canadian Council for Refugees, at para. 2, Kasirer J. described non-refoulement obligations as ones “which prohibit directly or indirectly returning a person to a place where they would face certain kinds of irreparable harm, including threats to their life or freedom, torture and cruel or degrading treatment” and called them “the cornerstone of the international refugee protection regime”. He went on to reason, at para. 164, that “If administrative malfeasance results in returning individuals to circumstances that would shock the conscience of Canadians, such as returning individuals to face a real and not speculative risk of refoulement, constitutional and administrative remedies remain available” and “that administrative decisions in this area call for the most anxious scrutiny”.
144Notwithstanding these comments, Suresh remains binding authority, subject to the Supreme Court’s decision to revisit it.
145For these reasons, a decision to remove a refugee in accordance with a Danger Opinion provided under s. 115(2) is not necessarily inconsistent with the principle of non-refoulement as it is construed in domestic law. Consequently, Canada’s decision not to hold Mr. Sharif’s refugee removal order in abeyance while his communication to the UNHRC was under consideration, is not an unreasonable exercise of its discretion as the law presently stands.
CONCLUSION
146For the above reasons, the appeal is denied and the cross-appeal is dismissed.
COSTS
147In these circumstances and given the novelty of some of these issues, no costs are ordered against Mr. Sharif. The intervener neither seeks nor is awarded costs.
STAY OF THE REMOVAL ORDER
148At Mr. Sharif’s request, this order is stayed and the Minister is enjoined from proceeding with Mr. Sharif’s removal to Somalia for 60 days from the release of these reasons.
Released: July 2, 2026 “J.A.T.”
“Thorburn J.A.” “I agree. R. Pomerance J.A.” “I agree. M. Rahman J.A.”
Footnotes
- In its factum, the Minister described its defence of the order on these two ground as a cross-appeal. The Minister did not file a cross-appeal nor could he because the judicial review application was dismissed. However, the Minister is entitled to rely on any grounds that were argued below that would uphold the order: R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, at pp. 238-40.
- Mr. Sharif raised this error with the application judge by letter after the application judge issued his reasons. The application judge replied that he was aware that the Federal Court’s review was limited to the refusal of a stay. The application judge had meant to convey that the Minister likely had available for consideration the materials filed in the Federal Court record. In any event the application judge regarded himself as functus officio.