CITATION: Doresi v. Canada (Attorney General), 2017 ONSC 7635
COURT FILE NO.:CV-16-565358
DATE: 20171221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LALI DORESI
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA, AND THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
Respondents
H.J. Yehuda Levinson for the Applicant
Julie Waldman for the Respondents
HEARD: December 12, 2017
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] Lali Doresi brings an application against the Minister of Immigration, Refugees and Citizenship and the Attorney General of Canada for: (a) an order declaring his criminal conviction in Albania was not made in accordance with Canadian and international legal standards or the Canadian Charter of Rights and Freedoms; (b) an order declaring his conviction is not recognized under Canadian law; and (c) an order declaring his wrongful conviction in Albania should not preclude him from obtaining Canadian permanent resident or citizenship status, or any other benefit he would otherwise be entitled to under Canadian law.
[2] In the motion now before the court, the Attorney General seeks an unopposed order removing the Minister of Immigration, Refugees and Citizenship from the style of cause. This order is granted.
[3] More significantly, the Attorney General also seeks an order pursuant to s. 106 of the Courts of Justice Act[^1] permanently staying Mr. Doresi’s application.
[4] For the reasons that follow, I grant the Attorney General’s motion and stay Mr. Doresi’s application.
B. Factual and Procedural Background
[5] In 2003, while in Albania, Mr. Doresi lent his motor vehicle to a friend. The friend did not return the car but rather reported to Mr. Doresi that he had crashed the vehicle. The friend compensated Mr. Doresi for the loss of the vehicle.
[6] The friend’s report was a lie. The truth was that the friend had used the vehicle with a plan to smuggle drugs from Albania to Greece. When the friend was stopped at the border, he fled on foot, and abandoned the vehicle, which contained Mr. Doresi’s passport. Because the car was registered in Mr. Doresi’s name and because of the found passport, Mr. Doresi was charged with drug trafficking.
[7] Mr. Doresi was unaware of the drug trafficking charges in Albania, and in April 2005, he came to Canada and made an inland claim for refugee status.
[8] In May 2005, in Albania, unknown to Mr. Doresi, an imposter appeared before a notary and executed a forged power of attorney authorizing Saimir Vishaj, an Albanian barrister, to represent him in the criminal proceedings in absentia and to plead guilty for him.
[9] On June 5, 2005, based on the guilty plea, Mr. Doresi was convicted in absentia for drug trafficking, and on October 24, 2005, the conviction was upheld by the Court of First Instance for Serious Crimes. He was sentenced to a term of imprisonment of six years for drug trafficking offences.
[10] Meanwhile without awareness of the events in Albania, in 2006, the Refugee Protection Division of the Immigration and Refugee Board (“the Board”) granted Mr. Doresi refugee protection under the Immigration and Refugee Protection Act.[^2]
[11] Six years passed, and the Minister of Immigration, Refugees and Citizenship learned about Mr. Doresi’s conviction, and in December 2012, pursuant to s. 109 of the Immigration and Refugee Protection Act, the Minister commenced an application to vacate the refugee protection on the basis that Mr. Doresi had misrepresented or withheld a material fact; namely his criminal conviction in Albania.
[12] Mr. Doresi was taken by surprise by the Minister’s application; it was the first notice to him that he had been convicted in absentia in Albania. Mr. Doresi immediately retained legal counsel in Albania and in Canada to investigate the matter.
[13] In April 2013, in Canada, Mr. Doresi requested an indefinite adjournment of the Minister’s application in order to obtain documents from the Albanian court. The Board refused this adjournment request but postponed the hearing until May because Mr. Doresi had not received certain documents from the Board.
[14] In May 2013, after Mr. Doresi filed a motion in the Federal Court for an order staying the Minister’s application, Justice Harrington granted a stay enjoining the Board from proceeding with the application until further order.[^3] Justice Harrington also directed Mr. Doresi's counsel to report to the Court in July 2013 as to the status of the efforts in Albania to have the conviction set aside.
[15] In October 2014, after over a year of updates from Mr. Doresi’s counsel, the Attorney General filed a motion to have the stay lifted.
[16] In November 2014, Justice Harrington lifted the stay of the Minister’s application on the ground that there was no end in sight with respect to Mr. Doresi’s efforts to obtain documents or to have his conviction in Albania vacated.[^4]
[17] In April 2015, Justice Fothergill dismissed Mr. Doresi’s judicial review application of the Board’s refusal to grant him an indefinite adjournment.[^5]
[18] Meanwhile in Albania, Mr. Doresi made a request for judicial review by the Supreme Court of Albania of his conviction based on the forged power of attorney and false guilty plea. On September 17, 2015, the Albanian Court dismissed the judicial review application because the evidence of the forgery was not properly proven in accordance with the Albanian Criminal Procedure Code.
[19] Because of the passage of time, Mr. Doresi’s Albanian lawyer advised Mr. Doresi that he could not apply for a re-trial of the original offence but he could seek an order from the Court of First Instance for Serious Crimes for the non-enforcement of the criminal conviction. On February 15, 2016, in Albania, Judge Liliana Baku extinguished the sentence but not the conviction.
[20] Mr. Doresi’s conviction remains a matter of record in Albania and under the Criminal Code of the Republic of Albania no pardon is available.
[21] In the application now before the court, Mr. Doresi submitted that while his criminal conviction impacts his immigration status in Canada, it also impacts on his life and the lives of his family. Thus, he stated in paragraph 27 of his factum:
- While the Applicant's criminal conviction potentially impacts his immigration status in Canada, it also has an impact on his life and that of his wife and children:
(a) It prevents them from travelling to the United States where they have family as the Applicant is inadmissible due to the conviction.
(b) The Applicant's mother has never seen his children, and he would like to travel with them to Macedonia, to meet her. However, travellers to Macedonia are required to register with the police within 24 hours of their arrival. The Macedonian police can bar the Applicant from remaining in Macedonia because of his record, and he could be deported to Canada. Or worse, Albania, where he fears persecution because of a blood feud which was the basis upon which he was determined a Convention refugee.
(c) The Applicant is currently self-employed as a sub-contractor however, his employment options are restricted because the Ontario Human Rights Code does not prohibit employment discrimination against individuals with criminal convictions, and therefore he could lose employment opportunities.
(d) When the Applicant moves to another residence a landlord is not prohibited from denying him accommodations based on his criminal conviction according to the Ontario Human Rights Code.
(e) The Applicant and his family would like to travel for vacation but he has been informed that he can be barred from many countries based on his conviction due to state-specific entry and exit requirements which provide immigration officers discretion to refuse individuals with criminal convictions.
C. Submissions of the Parties
[22] The Attorney General submits that Mr. Doresi’s application is fundamentally an immigration matter and that the Board and the Federal Court have the jurisdiction to deal with Mr. Doresi’s matter, including a jurisdiction to determine whether there has been a contravention of international law or of the Canadian Charter of Rights and Freedoms in the circumstances of Mr. Doresi’s conviction by the Albanian courts.
[23] The Attorney General does not challenge this court’s jurisdiction to grant the declaratory relief requested by Mr. Doresi, but she submits that where: (a) there is concurrent jurisdiction with the Federal Court; and, (b) the proceeding is at heart an immigration matter, then the proper forum to hear the matter is the Federal Court, unless (c) it can be shown that the Federal Court is not an effective or appropriate forum.[^6]
[24] The Attorney General submits that where the core issues are immigration matters and particularly where the Federal Court has addressed or is addressing the core issues, the Superior Court should decline to assume jurisdiction over the matter.[^7] The Attorney General submits that the Superior Court should stay the application because the Board and the Federal Court are the proper and appropriate forum to deal with the matter.
[25] Mr. Doresi disputes that his application is fundamentally an immigration matter. He submits that his application before the Ontario court is for broader relief and is a necessary application because the proceedings before the Board and the Federal Court do not address the substantive relief that he is seeking; i.e., a declaration that the criminal conviction in Albania is not recognized in Canadian law. He submits that he needs this declaration to remove the encumbrance on his and his family’s lives and livelihood.
[26] Mr. Doresi submits that the application is fundamentally about criminal law and the Ontario court has the expertise and the jurisdiction to address the issues beyond the jurisdiction of the Board and the Federal Court.
[27] Mr. Doresi submits that neither the Board nor the Federal Court can provide declaratory relief to the extent required by him and his family. He submits that the jurisdiction of the Board is limited to immigration matters and that under s. 18 of the Federal Court Act,[^8] the Federal Court’s jurisdiction may only grant declaratory relief against any federal board, commission or other tribunal while the Ontario court’s jurisdiction is very wide and this court’s jurisdiction can protect him and his family from discrimination.
[28] Relying on the decisions of Justice Dambrot and of the Ontario Court of Appeal in Ahani v. R.,[^9] Mr. Doresi submits that the Superior Court should assume jurisdiction over his matter and should hear his application for declaratory relief.
D. Discussion
[29] Mr. Doresi seeks: (a) an order declaring his criminal conviction in Albania was not made in accordance with Canadian and international legal standards or the Canadian Charter of Rights and Freedoms; (b) an order declaring his conviction is not recognized under Canadian law; and (c) an order declaring his wrongful conviction in Albania should not preclude him from obtaining Canadian permanent resident or citizenship status, or any other benefit he would otherwise be entitled to under Canadian law.
[30] I agree with the Attorney General’s submission that Mr. Doresi’s application is fundamentally an immigration matter, and that while this court has jurisdiction to address this matter, the appropriate and proper forum is the Federal Court and the Refugee Protection Division of the Immigration and Refugee Board.
[31] The Board is already seized with the issue of whether there is a valid and recognizable foreign conviction against Mr. Doresi, and the Board and the Federal Court have the experience[^10] and the jurisdiction to deal with such problems.
[32] While the ambit of declaratory relief available from the Federal Court is narrower than that of the Superior Court, the only live dispute and the only disputants before the court are Mr. Doresi and the Minister in an immigration matter. There is no urgent need for the Ontario court to intervene as was the situation in Ahani v. R., the extraordinary circumstances of which are far removed from the circumstances of the immediate case.
[33] Moreover, declaratory relief is not appropriate for hypothetical or speculative events or for something as vague and amorphous as “any other benefit he would otherwise be entitled to under Canadian law.”
[34] Declaratory orders are in the discretion of the court.[^11] The court’s discretion to make a declaration should be exercised sparingly and with extreme caution.[^12] As a general policy or practice the court will not make a declaratory order or decide a case when the decision will serve no practical purpose because the dispute is theoretical, hypothetical or abstract, and the remedy of a declaratory relief is not generally available where the dispute or legal right may never arise.[^13]
E. Conclusion
[35] For the above reasons, Mr. Doresi’s application is stayed.
[36] The Attorney General shall have her costs, which I fix at $4,457.01, all inclusive.
Perell, J.
Released: December 21, 2017
CITATION: Doresi v. Canada (Attorney General), 2017 ONSC 7635
COURT FILE NO.:CV-16-565358
DATE: 20171221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LALI DORESI
Applicant
– and –
THE ATTORNEY GENERAL OF CANADA, AND THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
Respondents
REASONS FOR DECISION
PERELL J.
Released: December 21, 2017
[^1]: R.S.O. 1990, c. C.43. [^2]: S.C. 2001, c. 27. [^3]: Doresi v. Canada (MCI), 2013 FC 530 at para 27. [^4]: Doresi v. Canada (MCI), 2014 FC 1133 at para. 8. [^5]: Doresi v. Canada (MCI), IMM-3189-13, April 29, 2015. [^6]: Rexa v. Canada, 1994 91 (SCC), [1994] 2 S.C.R. 394 at para. 22; Francis v. Canada (AG), 2003 64349 (ON CA), [2003] O.J. No. 691 (C.A.); JH v. FA, 2009 ONCA 17 at paras. 24-28. [^7]: Almrei v. Canada (AG), [2005] O.J. No. 5067 at paras. 24, 28 (S.C.J.); Gunther v. AG, [2007] O.J. No. 739 (S.C.J.); Sillampalam v. Canada (AG), 2010 ONSC 3205 at paras. 28 and 32; Mohammad v. Canada (AG), 2013 ONSC 2936 at para. 14; Dep v. Canada (MPSEP), 2014 ONSC 6498 at para. 32; Chaudhary v. Canada (MPSEP), 2015 ONCA 700. [^8]: RSC 1985, c F-7. [^9]: [2002] O.J. No. 81, aff’d 2002 23589 (ON CA), [2002] O.J. No. 431 (C.A.). [^10]: See X (Re), 2014 94315 (CA IRB). [^11]: CTV Television Network Ltd. v. Kostenuk, 1972 435 (ON CA), [1972] 3 O.R. 338 (C.A). [^12]: Re Lockyer, 1933 137 (ON CA), [1934] O.R. 22 (C.A.). [^13]: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; Green v. Canada (Attorney General), 2011 ONSC 4778; B2B Bank v. Batson, 2014 ONSC 6105.