SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR139000021200MO
DATE: 20140617
BETWEEN:
KIPPAX, ALAN
- and -
ATTORNEY GENERAL OF CANADA
REASONS FOR DECISION
--- Before the Honourable Justice J. Macdonald,
at the Metropolitan Toronto Court House, on August 29th, 2013.
A P E A R A N C E S:
Gotkin, B.(Esq.) and Motwani, M.(Ms.) for the Crown
Vanderbeek, B.(Ms) and McAdam, D.(Esq.) for the Accused
Reasons
J. Macdonald, J. (Orally)
[1] Two proceedings are before the Court. By Notice of Application, Mr. Kippax moves for an order in the nature of habeas corpus, with certiorari in aid directing the respondent, the Attorney General of Canada, to release him from custody on a recognizance. He is presently held by order of the Immigration Division of the Immigration and Refugee Board of Canada pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c.27, having been ordered deported. The deportation order has not been executed, although final in nature, pursuant to Section 50(a) of the Act, because criminal charges are pending.
[2] The second proceeding is a Notice of Motion on behalf of the Attorney General of Canada for an order staying Mr. Kippax’ application pursuant to Section 106 of the Courts of Justice Act, R.S.O. 1990, c.C.43, on the basis that the matters raised by him are more appropriately decided by the Federal Court.
[3] On consent, the motion brought by the Attorney General of Canada was heard first, and these are my Reasons for Decision therein.
[4] It was also agreed that the argument advanced by the Attorney General of Canada that Mr. Kippax’ application falls within Section 21(2) of the Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50, would be heard subsequently, if the application is not stayed on other grounds. While the jurisdictional issues raised by Section 21(2) ordinarily should result in the subsection being given consideration before any discretionary grounds for granting a stay, in this case, the Notice of Application and the Notice of Motion have come on very quickly and neither counsel is presently in a position to address the issues in Section 21(2). Consequently, they have agreed as aforesaid, and, if a discretionary stay is not ordered under Section 106 of the Courts of Justice Act, Section 21(2) will be argued tomorrow.
[5] Mr. Kippax has been detained pursuant to the Immigration and Refugee Protection Act since January 2013. Monthly reviews of the detention orders have been conducted by the Immigration Division, each resulting in a further detention order. In June of this year, the Federal Court dismissed an application for judicial review of the then-previous detention orders. In subsequent reviews of the detention order, on July 11th and August the 8th, 2013, Mr. Kippax was also ordered detained. Following the decision of August 8th, 2013, Mr. Kippax moved before the Federal Court for leave to bring a further judicial review application on an urgent basis. Although the request for an urgent hearing was dismissed, that application is before the Federal Court on September 3rd, 2013 (five days from now) and it is thought that, if leave is granted, the judicial review application will be heard within several weeks thereafter.
[6] Mr. Kippax’ counsel agrees that the application pending in Federal Court is fairly described as directed to obtaining his release from custody pending execution of the deportation order. The relief sought there is thus similar in nature to the relief which Mr. Kippax seeks in this Court.
[7] In its detention reviews, the Immigration Division has concluded that detention is warranted because Mr. Kippax is a flight risk and also a danger to the public based on his substantial criminal record in Canada. In opposing the Attorney General’s motion for a stay, Mr. Kippax argues that the Federal Court is not the most effective and appropriate court to deal with his continued detention. That is because, it is argued, the grounds for detention are based on Mr. Kippax’ criminal antecedents and this Court has superior expertise to that of the Federal Court in respect of criminal matters. That is also because of delay in the Federal Court, which has declined to treat the application pending there as urgent. Further, Mr. Kippax disputes the suggestion that he is forum shopping in moving to obtain essentially the same relief by means of simultaneous proceedings in two different courts. Lastly, Mr. Kippax submits that with his liberty at stake, he should be afforded the most expeditious means of challenging his detention. He submits that this Court can provide a more expeditious determination of this issue than the Federal Court.
[8] I begin my analysis by addressing the suggestion that this Court can and will provide a more expeditious procedure. This Court has limited institutional resources and a very substantial caseload. If I were to determine that this Court should not stay Mr. Kippax’ application, and if I were to determine that Section 21(2) of the Crown Liability and Proceedings Act is not applicable, I think it likely that even on an expedited basis, I would not be able to decide the habeas corpus application without reserving my decision. It is difficult to predict, but with other scheduled matters, a period of weeks under reserve would appear to be reasonable. Then, if I were to grant habeas corpus, a proper review of the detention order in the nature of a bail review would need to be scheduled, with time given to both sides to prepare and to be able to present viva voce evidence, if so desired. In my view, that likely would involve a few more weeks. Given other scheduled matters, I conclude that it is unlikely that this Court can provide a detention review more expeditiously than the Federal Court can proceed with a determination of the application now pending in that Court.
[9] Next, I think it is fair to say that this Court deals more frequently with detention and release issues in the criminal context than the Federal Court does. Nonetheless, it is inaccurate to suggest that the Federal Court has no expertise in this area. Its immigration jurisdiction and the fact that criminality may result in a deportation order results in matters coming before that Court which involve detention and release issues in the criminal context as it relates to immigration matters. Quite apart from that, the Federal Court deals more frequently with immigration issues and has extensive expertise therein.
[10] Since this case involves the interface between immigration and criminal issues, I conclude that the Federal Court has very substantial expertise in respect of the issues which Mr. Kippax has pending before it.
[11] Consequently, while persons challenging detention orders should be given priority in court, the reality is that in all probability, this Court and the Federal Court will provide hearing dates in respect of Mr. Kippax’s detention and request for release at about the same time, and that the Federal Court will be able to bring a wealth of expertise to the issues before it.
[12] I therefore do not accept the factual premises advanced by Mr. Kippax in asserting that this Court is the more effective and appropriate forum in which to deal with his detention and release issues.
[13] Quite apart from this, as held by the Ontario Court of Appeal in Peiroo v. Canada (Minister of Employment and Immigration) 1989 184 (ON CA), [1989] 69 O.R. (2nd) 253 at pages 261 to 262 (Leave to Appeal to the Supreme Court of Canada denied [1989] 2 S.C.R. x), Parliament established in the former Immigration Act (now the Immigration and Refugee Protection Act) a comprehensive scheme to regulate claims relating to immigration issues and provided for review and appeal to the Federal Court of decisions made under the Act. The review and appeal rights were as broad or broader than the scope of review by way of habeas corpus with certiorari in aid. Consequently, the Court of Appeal per Catzman, J.A. held:
“In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the Supreme Court of Ontario, it is my view that this Court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus in this case, which clearly falls within the purview of that statutory review and appeal process.”
[14] The Supreme Court of Canada quoted the aforesaid extract from Peiroo with approval in May v. Ferndale Institution 2005 SCC 82, [2005] 3 S.C.R. 809 at page 831. In Reza v. Canada 1994 91 (SCC), [1994] 2 S.C.R. 394 the Supreme Court also held that a judge of this Court who refused to hear a constitutional challenge to the Immigration Act exercised his discretion properly on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.
[15] In May v. Ferndale (supra) at page 832, the Supreme Court, after referring to Reza (supra) stated,
“Thus, it can be seen from these cases that, in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded.”
[16] I accept that this Court’s discretion to refuse to entertain an application for prerogative relief in immigration matters is a limited discretion. Nonetheless, I am of the view that that discretion is properly exercised in this case, where Mr. Kippax has already moved before the Federal Court for functionally the same relief, and that Court will be acting pursuant to the comprehensive scheme in the Immigration and Refugee Protection Act in determining Mr. Kippax’s rights. The relief sought in this Court is precluded, in these circumstances.
[17] In addition, the Federal Court has exclusive jurisdiction to grant judicial review in respect of a federally constituted tribunal such as the Immigration Division of the Immigration and Refugee Board: see Section 18(1) of the Federal Courts Act, R.S.Counsel 1985, c.f-7. To that extent, a broader remedy is available in that Court.
[18] The motion to stay Mr. Kippax’s application for habeas corpus with certiorari in aide to review his detention in this Court is granted, and the application is stayed.
I, Alana Trumpy, certify that this document is a true and accurate recording, made out to the best of my ability, of KIPPAX v. ATTORNEY GENERAL, taken from Recording No. 4899_2-8_20130829_095050__10_MACDONJOHN.dcrat the Superior Court of Justice, 361 University Ave.
Date ________________________
Signature ___________________
Copies of this transcript bearing photostatic signatures are not certified and have not been paid for. Unless transcripts bear the original signature of Alana Trumpy, IN BLUE PEN, they are not valid, and accordingly, are in direct violation of Ontario Regulations 587/91, Court of Justice Act, January 1, 1990.
Mr. Justice John Macdonald
Date: June 17, 2014
COURT FILE NO.: CR139000021200MO
DATE: 20140617
ONTARIO
SUPERIOR COURT OF JUSTICE
KIPPAX, ALAN
– and –
ATTORNEY GENERAL OF CANADA
REASONS FOR DECISION
J. Macdonald J.
Released: June 17, 2014