COURT OF APPEAL FOR ONTARIO

CITATION: Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 251

DATE: 20150413

DOCKET: M44915 (C60223)

Weiler J.A. (In Chambers)

BETWEEN

Amina Chaudhary, Michael Mvogo,

Carmelo Bruzzese and Glory Anawa

Applicant

(Appellants on appeal

and

Minister of Public Safety and Emergency Preparedness,

Minister of Citizenship and Immigration,

Attorney General of Canada, Attorney General of Ontario, and

Superintendent of the Central East Correctional Centre

Respondents

Barbara Jackman and Rebecca Lockwood, student at law, for the applicant

Martin Anderson, for the Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration

Mélissa Mathieu, for the Attorney General of Canada

Heard: April 10, 2015

ENDORSEMENT

A. Overview

[1] The applicant, Mr. Bruzzese, is a permanent resident of Canada. He is being detained in custody as a flight risk and a danger to the public based on an investigation of his potential inadmissibility to Canada for being a member of an organization engaged in organized criminal activity under s. 37(1)(a) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA).

[2] He brought an application before a judge of the Superior Court of Ontario for habeas corpus with certiorari in aid, seeking his immediate release from custody and claiming that his continued detention was unlawful. The judge declined to exercise his habeas corpus jurisdiction. He held that IRPA is a complete and comprehensive scheme for the determination of the lawfulness of the applicant’s detention and it permits an ambit of review that is at least as broad and advantageous as the traditional scope of review by habeas corpus with certiorari in aid. Permitting the habeas corpus petition to proceed would provide a collateral procedure to challenge the merits of detention outside of the comprehensive scheme. Declining jurisdiction in such circumstances was consistent with well-established jurisprudence. Accordingly, he dismissed the application. The applicant has appealed that dismissal to this court.

[3] The parties have asked this court to expedite the appeal and I have ordered that the appeal is to be heard on May 6, 2015.

[4] In the interim, and in the event a deportation order is made prior to the Ontario Court of Appeal deciding his appeal, the applicant seeks an order that until this court decides his appeal, no final deportation order is to be enforced against him. The mechanism pursuant to which such order is requested is this motion for a stay.

[5] I am not prepared to make the order requested for two reasons. First the order being sought is premature. Second, the applicant has not met the requirements for granting a stay as the appeal does not raise a serious issue to be tried.

B. The order requested is premature

[6] The order sought by the applicant does not relate to his continued detention. The stay being sought is not a stay of the order under appeal but the stay of a possible future deportation order.

[7] In Ahani v. Canada (Attorney General), 2002 O.J. No. 90, Feldman J.A. held that this court has jurisdiction to issue a stay of a deportation order that has been issued pursuant to s. 134(2) of the Courts of Justice Act, if the criteria of the section are met. That subsection provides:

134(2) On motion, a court to which a motion for leave to appeal is made or to which an appeal is taken may make any interim order that is considered just to prevent prejudice to a party pending the appeal.

[8] Mr. Ahani was the subject of a deportation order who had exhausted all his rights of appeal, including to the Supreme Court of Canada, when he brought his motion for a stay. If Feldman J.A. had refused to grant a stay of the deportation order, Ahani’s appeal from the Superior Court’s assumption of jurisdiction and decision would have been rendered moot.

[9] That is not this case. The Superior Court declined to assume jurisdiction, a deportation order has yet to be made and the applicant has thus not exhausted his rights under IRPA. To ask this court to issue what is in effect an injunction in these circumstances is premature. Section 134(2) does not give a court the discretion to prevent potential future prejudice that may never arise. Thus the requirement for the assumption of jurisdiction under s. 134(2) of the Courts of Justice Act has not been met.

[10] I note that a stay of a prospective deportation order has been granted by the Federal Court. (Yhap v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 926). Thus, with respect to the order requested of me, the Federal Court is a more effective venue.

C. The appeal does not raise a serious question to be tried

[11] Having regard to the lengthy argument advanced, I will, in any event consider whether the test for a stay has been met.

[12] The test for staying an order pending appeal under rule 63.02 is the same as the test for an interlocutory injunction established by the Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at p. 334. The test requires the court to consider the following three factors:

(1) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

(2) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

(3) an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[13] See Circuit World Corp. v. Lesperance (1997), 1997 CanLII 1385 (ON CA), 33 O.R. (3d) 674 (C.A.); BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620, 283 O.A.C. 321 at para. 16; Warren Woods Land Corp. v. 1636891 Ontario Inc., 2012 ONCA 12 at para. 1.

[14] The overarching consideration is whether the interests of justice call for a stay: International Corona Resources Ltd. v. LAC Minerals Ltd. (1986), 21 C.P.C. (2d) 252 (Ont. C.A.); see also Longley v. Canada (Attorney General), 2007 ONCA 149, 223 O.A.C. 102 at paras. 14-15; BTR Global, at para. 16.

[15] The assessment begins with a presumption of correctness of the decision under appeal: Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 1998 CanLII 1441 (ON CA), 38 O.R. (3d) 448, [1998] O.J. No. 1824 (C.A.), at p. 450 O.R. The onus is on the moving parties to establish a case for a stay: International Corona Resources Ltd, supra, at p. 255 C.P.C.

[16] I have not been persuaded that there is a serious question to be tried as to whether the judge at first instance erred in declining to exercise his jurisdiction to issue a writ of habeas corpus with certiorari in aid. One of the circumstances in which the Supreme Court of Canada has held that a provincial superior court judge should decline to exercise habeas corpus jurisdiction is where legislation has put in place a complete, comprehensive and expert procedure for the review of an administrative decision regarding the detention of individuals: Mission Institution v. Khela 2014 SCC 24 at paras. 42 and 55. This is sometimes called the Peiroo exception after the decision of Catzman J.A. in Peiroo v. Canada (Minister of Employment and Immigration) (1989) 1989 CanLII 184 (ON CA), 69 O.R. (2d) 253, (Ont. C.A.) leave denied, [1989] S.C.C.A. No. 322. See also Reza v. Canada 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394 at para. 21.

[17] The applicant’s counsel seeks to distinguish the authorities cited above from the present situation. She submits that those cases and the voluminous jurisprudence following these decisions can be distinguished because the challenges in those cases involved individuals who were either not detained or who were detained on a different basis than the applicant. I disagree that the jurisprudence can be distinguished on this basis. The applicant’s detention arises out of a matter under immigration law; he is subject to that comprehensive scheme, and the decisions made are, with leave, subject to review by the Federal Court under s. 72(1) after any right of appeal in the Act has been exhausted. Section 72(1) provides:

72(1) Judicial review by the Federal Court with respect to any matter – a decision, determination or order made, a measure taken or a question raised – under this Act is commenced by making an application for leave to the Court.

[18] The applicant relies on Baroud v. Canada (MCI) 1995 CanLII 638 (ON CA), [1995] O.J. No. 43, at para. 8 where the court observed:

The parties are agreed that the Federal Court Trial Division has no jurisdiction to grant habeas corpus to this appellant. The issue is therefore somewhat different than in Rezawhere the same remedies as were sought in the provincial court were available in the Federal Court. The case is also dissimilar to Peiroo v. Canada (Minister of Employment & Immigration) where there were avenues of appeal to be pursued in the Federal Court. The issue in this case is whether a discretion should be exercised against the issuance of a writ of habeas corpus because there are adequate alternative remedies available in the Federal Court where other related proceedings are presently pending. (citations omitted)

[19] In Baroud, the court held, however, that the applicant for habeas corpus had not shown that the alternative remedies available under IRPA were inadequate or ineffective. See also Shepherd v. Canada (MEI) 1989 CanLII 4359 (ON CA), 1989 OJ NO 2056 (C.A.) leave denied [1989] 2 SCR xi and R. v. Zundel 2004 CanLII 15295 (ON CA), [2004] OJ No. 2087 at paras 5-7, 12, leave denied, [2004] S.C.C.A. No. 316.

[20] The applicant also relies on the assumption of jurisdiction by Campbell J. in Bembenek v. Canada (Minister of Employment and Immigration) 1991 CanLII 11763 (ON SC), [1991] O.J. No. 2162. As Campbell J. observed himself at p. 48 of his reasons, the applicant for habeas corpus in that case was in custody on extradition proceedings which were separate from the immigration proceedings. Thus that decision is not of assistance.

[21] In this case, I am also of the opinion that the applicant has not shown alternative remedies available under IRPA are inadequate or ineffective. Thus, the appeal is frivolous.

[22] Having regard to the argument before me I will elaborate on my conclusion by making brief comment on the major specific arguments raised by the applicant.

(1) Whether access to review of detention under IRPA is untimely; whether the applicant’s detention is not warranted and habeas corpus should issue

[23] The applicant stresses the time to access the remedies under IRPA as compared to a habeas corpus hearing and submits that the latter is a more effective remedy. In Baroud,Carthy J.A. observed, in rejecting this argument, that, “the length of time that it takes to review a detention must depend upon the circumstances of the particular case.” While the applicant submits that the review of his detention orders was untimely and that each successive review relied on the initial decision, those detention orders were ultimately reviewed prior to the hearing in the Superior Court on whether habeas corpus should issue.

[24] Montigny’s decision concerning the applicant’s detention, reported at 2014 FC 230, [2014] F.C.J. No. 261, held that there was sufficient evidence to support the conclusion he should be detained because he was a danger to the public and a flight risk. In arriving at his decision, Montigny J. considered a number of factors including (1) the applicant faces charges in Italy for membership in a criminal organization and engaged in behaviour consistent with criminal association; (2) the finding the proposed sureties could not reasonably control the applicant was reasonable; (3) there are good reasons to find GPS monitoring would not be enough, as the bracelet could be removed, was slow to notify police and only monitored the applicant's movements.

[25] This decision is helpful context in deciding whether the interests of justice require that a stay be issued.

(2) Whether the proceeding is a disguised extradition

[26] The applicant submits that the proceeding under IRPA is a disguised extradition in the sense that IRPA is being used because extradition is not available. Being a member of a criminal organization is not an offence in Canada and the double criminality aspect required for extradition is not present. The Federal Court can assess whether a proceeding under IRPA is a disguised extradition hearing because if it is that is an unlawful exercise of power. Indeed, the question as to what constitutes a disguised extradition has been examined by the Federal Court of Appeal and in Shepherd, supra, this court commented at page 9, that from the decision of the Federal Court of Appeal in MacDonald v. Kindler [1987] 3 F.C. 34, and the trial decision, the following principles emerge:

1. If the purpose of the exercise is to deport the person because his presence is not conducive to the public good, that is a legitimate exercise of the power of deportation.

2. If the purpose is to surrender the person as a fugitive criminal to a state because it asked for him, that is not a legitimate exercise of the power of deportation.

3. It is open to the courts to inquire whether the purpose of the government was lawful or otherwise.

4. The onus is on the party alleging an unlawful exercise of power. It is a heavy onus.

5. To succeed, it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the person in question.

6. The adoption of the Charter has not lessened the onus.

[27] In this case, the applicant sought further disclosure to support her argument that this is a disguised extradition hearing which was refused. She did not seek to have that refusal reviewed by the Federal Court.

[28] Judges of the Federal court and administrative tribunals also have an inherent and residual discretion to prevent an abuse of the court’s process: Al Yamani v. Canada (Minister of Citizenship and Immigration), [2003] F.C.A. 482 at para. 25. If the proceeding here is a disguised extradition it would also be an abuse of process and would be open to challenge before the Federal Court on that ground as well.

Bias

[29] At the outset, the applicant asked that the adjudicator hearing his case to recuse herself on account of apprehended bias because she had made an earlier ruling against him. She refused to recuse herself and the applicant sought leave to review her decision. Leave was refused and there is no further appeal from that refusal.

[30] The mere fact that an adjudicator sat on a previous matter involving the same applicant does not give rise to actual bias or an apprehension of bias: Arthur v. Canada (Minister of Employment and Immigration), 1992 CanLII 2410 (FCA), [1993] 1 F.C. 94 (C.A.). In Khalife v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 1542, Kelen J. explained at para. 12:

In Arthur, the Federal Court of Appeal was faced with a similar situation to the case at bar. The adjudicator made a negative credibility finding when he ruled against an individual seeking release from detention and the applicant argued he had formed an overall opinion on credibility that disqualified him from adjudicating a second hearing. The Court held that an opinion on credibility was not enough to demonstrate bias.

[31] What the Court must do instead is examine the adjudicator’s decision to detect any predisposition respecting the applicant’s general credibility that amounts to prejudgment of his claim: Khalife, supra, at para. 13. In this case such a claim may be revisited after the adjudicator’s decision.

(3) Whether Section 1 of the Charter of Rights and Freedoms is a reasonable limit on the applicant’s rights

[32] The applicant also raised the issue of whether the statutory limit on his right to review an unfavorable decision under IRPA was a reasonable limit under s. 1 of the Charter of Rights and Freedoms. This point was also answered in Baroud at para 18 as follows:

Once there is a finding that an alternative remedy is equally effective it is axiomatic that the denial of the right to the issuance of a writ of habeas corpus is a justifiable limit.

[33] The applicant relies on the decision of the Supreme Court of Canada in R. v. Bedford [2013] S.C.C. 32 at para. 42 for the proposition that the same Charter arguments that have been decided in other earlier cases can and should be reconsidered. In Bedford, the legal issues under s. 7 were different and the evidentiary record was richer. The Court observed at para. 41 of that decision that current social and economic research not available at the time of the earlier decision now refuted earlier assumptions, justifying a departure from precedent. This is not such a case.

D. Conclusion

[34] The applicant does not meet the first requirement for a stay; the appeal does not raise a serious question to be tried. Consequently, I need not go on and address the other requirements for a stay. The interests of justice do not favour the issuance of a stay where, as here, an appellate court would inevitably reach the same conclusion as the judge at first instance.

[35] Accordingly, the application is dismissed.

“K.M. Weiler J.A.”