Court File and Parties

Court File No.: CV-25-100799 Date: 2025-09-18 Ontario Superior Court of Justice

Between: Mahir Mahya Sharif, Applicant – and – Minister of Public Safety and Emergency Preparedness, Respondent

Counsel:

• Gib van Ert, Dahlia Shuhaibar, and Jessica Chandrashekar, counsel for the Applicant
• Bernard Assan and Nicola Shahbaz, counsel for the Respondent

Heard: August 12, 20 and 21, 2025 (via videoconference)

Reasons for Decision

Hackland J.

Introduction

[1] The applicant (sometimes referred to as "Mr. Sharif") seeks judicial review under sec. 6(2) of the Judicial Review Procedures Act, R.S.O. 1990, Chap. J.1, of a decision by the Minister of Public Safety and Emergency Preparedness (the Minister) to remove the applicant from Canada to Somalia in the face of an "Interim Measures Request" ("IMR"), from the United Nations Human Rights Committee ("the UN Committee"), which requested the Minister to place the applicant's removal in abeyance pending the UN Committee's consideration of the applicant's complaint.

[2] The Applicant submitted his complaint (known as a "communication") to the UN Committee under the International Covenant on Civil and Political Rights 1996 ("the Covenant") and its Optional Protocol, both ratified by Canada but not incorporated into domestic law. He alleges his removal will violate Canada's obligations under the Covenant; he also asked the UN Committee to issue an Interim Measures Request ("IMR"), requesting that Canada not remove him until the UN Committee has considered his case. The evidence indicates it can take several years for the UN Committee to complete its consideration of a complaint and to deliver its views to Canada. The UN Committee did issue an IMR request to Canada under the Optional Protocol, which was transmitted to the Minister. This request was not acceded to by the Minister. Subject to court order, the Minister proposes to proceed with Mr. Sharif's removal to Somalia.

The Parties' Positions

[3] In this Application, the applicant Mr. Sharif seeks an order quashing the Minister's decision not to accede to the UN Committee's IMR request on the basis the Minister's decision is unreasonable. Mr. Sharif asks that the decision be remitted back to the Minister for redetermination. He also maintains, in response to the Minister's position, that the issue presented is justiciable and that the Superior Court of Justice has jurisdiction in this matter.

[4] The Minister's position is that the decision not to accede to the IMR request is an exercise of Crown prerogative which is not justiciable and, alternatively, if justiciable, is an issue within the exclusive jurisdiction of the Federal Court. The Minister's position is also that, in any event, the decision not to accede to the UN Committee's IMR request is reasonable.

The Applicant, Mr. Sharif

[5] Mr. Sharif is a 25-year-old Somali national. Mr. Sharif and his mother were granted refugee status under the Convention Relating to the Status of Refugees 1951 ("Refugee Convention") in 2013 while in a refugee camp in Egypt and were resettled in Canada in 2019 as permanent residents. Other members of his family have also been granted refugee status and live in Alberta. Mr. Sharif was resettled in Canada as a permanent resident on 27 March 2019.

Mental Health Issues

[6] Mr. Sharif has significant mental health challenges. He was, from 25 July to 5 August 2025, involuntarily hospitalized in an in-patient psychiatric unit at an Ontario Hospital pursuant to a Form 17 issued under the Mental Health Act. A psychiatric assessment of Mr. Sharif undertaken on 31 July 2025 by Dr. Katrina Hui MD, MS, FRCPC, diagnoses him as schizophrenic and observes that he presents with clear psychotic symptoms including auditory hallucinations, delusions, and thought disorder. I note that Dr. Hui's opinion letter was obtained in connection with the present hearing and was not before the Federal Court.

[7] Mr. Sharif is currently in an immigration detention facility in Toronto. He was scheduled to be deported to Somalia on 15 August 2025, however this court stayed the deportation on August 12th, pending the court's decision on this judicial review application.

Criminal Offences

[8] In August 2022, Mr. Sharif pleaded guilty to certain criminal offences that occurred between December 2021 and July 2022. One of those convictions was for a sexual assault Mr. Sharif committed in June 2022 while hospitalized as a psychiatric patient. The victim was another psychiatric patient in the same institution. He has also been convicted of drug trafficking offences stemming from 4 incidents in which he sold fentanyl to undercover police officers.

The Inadmissibility Proceedings

[9] On 4 October 2023, the Immigration Division of the Immigration and Refugee Board found that Mr. Sharif was inadmissible to Canada under s. 36(1)(a) ("serious criminality") of the Immigration and Refugee Protection Act ("IRPA") based on the conviction for sexual assault and issued a deportation order. As a result, Mr. Sharif lost his permanent resident immigration status.

The Danger Opinion

[10] On 13 May 2025, a delegate of the Minister of Citizenship and Immigration determined in a "Danger Opinion" following an inquiry described as a Danger Opinion Process that based on Mr. Sharif's criminal history, the danger he presented to the Canadian public outweighed the risks he faces in Somalia, such that he could be deported to Somalia under s. 115(2)(a) of the IRPA, despite his Convention refugee status.

Federal Court Proceedings

[11] On 27 May 2025, Mr. Sharif filed an application for leave and for judicial review of the Danger Opinion in Federal Court. Mr. Sharif also brought a motion to stay his removal pending the outcome of the judicial review application. On 26 June 2025, the Federal Court, per Duchene J., dismissed the motion. The Canada Border Services Agency (CBSA) then scheduled Mr. Sharif for removal to Somalia, initially to proceed on 11 July 2025.

The UN Human Rights Committee Proceedings

[12] On 2 July 2025, having ostensibly exhausted his available domestic remedies in Canada, Mr. Sharif, through his counsel, submitted a written communication to the United Nations Human Rights Committee pursuant to art. 2 of the Optional Protocol to the International Covenant on Civil and Political Rights 1966 (the "Optional Protocol").

[13] 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. The Minister previously had the Danger Opinion and the Federal Court proceedings. This court makes the assumption this information was duly considered by the Minister. According to the applicant's factum: Mr. Sharif's communication to the UN Committee was lengthy and contained 25 attachments. Among other things, the communication made the following points:

(a) Mr. Sharif had been unrepresented and involuntarily hospitalized for most of his immigration proceedings.

(b) Because the Danger Opinion did not accept that Mr. Sharif had a mental health condition, the decision maker did not consider the risk that Mr. Sharif would face based on his mental health.

(c) Duchene J.'s reasons for refusing Mr. Sharif's motion for a stay of the removal order were novel and in conflict with other decisions of the Federal Court on similar applications.

(d) Mr. Sharif's risk in Somalia as a deportee had not been assessed. Specifically, Al-Shabaab has previously considered that people who are deported from Western countries may be spies and have executed them based on this suspicion.

(e) What will happen to Mr. Sharif upon arrival in Mogadishu is profoundly uncertain given Somalia's refusal to issue him travel documents, CBSA's failure to confirm that Somalia would allow him entry on the "single journey document" it has issued for his travel, and CBSA's decision not to accompany him all the way to Somalia (contrary to CBSA policy).

[14] By letter dated 8 July 2025, the UN Human Rights Committee advised Mr. Sharif's counsel that his communication had been received and that, under Rule 94 of the Committee's rules of procedure, Canada had been requested not to deport Mr. Sharif to Somalia while his communication is under consideration. As noted previously, this communication from the UN Committee is known as an interim measures request (IMR).

[15] On 8 July 2025, Mr. Sharif's counsel wrote to CBSA informing it of the interim measures request. On 9 July, CBSA advised that the removal scheduled for 11 July 2025 had been cancelled. Subsequently, on 22 July 2025, CBSA advised that the Minister had approved proceeding with Mr. Sharif's removal to Somalia and that a stay of removal under s. 50(e) of the IRPA had not been issued.

[16] Counsel for the Minister and the applicant agree the effect of that decision was to refuse the UN Committee's interim measures request. Of significance to this application, no reasons were given for the Minister's decision. The Minister's counsel advised this court that the Minister does not provide reasons for declining an IMR request and for the court to require reasons would, in the Minister's submission, be an unwarranted departure from existing practice.

[17] Mr. Sharif's counsel received a communication from a CBSA lawyer, advising of the Minister's direction to proceed with Mr. Sharif's removal to Somalia, in the following terms:

As you are aware, Mr. Sharif's previous removal date of 11 July 2025 was cancelled following the receipt of an Interim Measures Request issued by the United Nations Human Rights Council. While such requests are not binding on Canada and do not in and of themselves create a stay of removal under IRPA, CBSA does not proceed with removal absent direction from the Minister of Public Safety. I am writing to advise that, on 22 July 2025, the Minister of Public Safety approved proceeding with Mr. Sharif's removal to Somalia. A stay of removal under A50(e) of IRPA has not been issued in respect of Mr. Sharif.

The Present Proceeding

[18] Mr. Sharif then commenced the present application in this court seeking judicial review of the Minister's decision to not accede to the IMR request and to proceed with his removal to Somalia. The matter came on before me on an urgent basis on August 12th, within 48 hours of the planned removal. The Minister's materials had not been made available to me until the commencement of the hearing due apparently to administrative issues and timing constraints. Following submissions, I exercised my discretion to issue a stay of the Minister's removal order until the present proceedings are concluded. The court's opinion was that refusing a stay order, in the face of substantial issues raised in this proceeding (as to the reasonableness of the Minister's decision to not accede to the IMR request without providing reasons to the applicant) could result in a failure of justice. The court was also mindful that the Minister had previously delayed Mr. Sharif's removal on two occasions for what were described as administrative reasons.

[19] The court raised with counsel whether it may be open to the applicant to seek further relief in the Federal Court of Appeal or indeed from Duchene J. in relation to his order declining to stay the Minister's removal order and his ruling as to the fairness of the Danger Order process. Evidence was placed before this court about the current extent of Mr. Sharif's serious psychiatric problems and the psychiatrist's opinion letter, information which was not available to Duchene J. Further there appear to be conflicting procedural decisions in the Federal Court about aspects of judicial review of Danger Opinions which are directly relevant to this case. In other words, there may be a basis for further proceedings in Federal Court or in the Federal Court of Appeal which should be pursued if available. Immigration matters fall within federal administrative law and should, as a general rule, be reviewed in the Federal Court, notwithstanding concurrent jurisdiction in provincial superior courts for some limited issues such as section 7 Charter proceedings and judicial review of decisions which are exercises of pure Crown Prerogative. This may be particularly so when, as here, judicial review of Mr. Sharif's inadmissibility and removal proceedings have already taken place in Federal Court. I invited counsel's further submissions on this point, which are discussed below.

Discussion

Justiciability and Jurisdiction

[20] The Minister's position is that his decision not to accede to the UN Committee's interim measures (IMR) request is not justiciable by the courts and, in the alternative any judicial review of the decision would be within the exclusive jurisdiction of the Federal Court. The applicant responds that the Minister's decision is an exercise of Crown prerogative of a nature which is justiciable and the Superior Court of Justice has a concurrent jurisdiction with the Federal Court in this matter.

[21] Dealing first with the alleged non-justiciability of the Ministers decision to proceed with Mr. Sharif's removal and thereby not accede to the UN Committee's interim measures request, it is argued this is an executive branch decision of the type courts are reluctant to review. The Minister submits "although Canada typically pauses removal on receipt of an IMR, Canada determines this on a case-by-case basis…because an IMR is non-binding on Canada…" It is said the executive branch's decision on whether to accede to an IMR request is an aspect of the conduct of foreign relations.

[22] The Federal Court of Appeal explained in Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 ("Hupacasath") that justiciability "concerns the appropriateness and ability of a court to deal with an issue before it." The court held that "some questions are so political that courts are incapable or unsuited to deal with them, or should not deal with them in light of the time-honoured demarcation of powers between the courts and the other branches of government." In Black v. Canada (Prime Minister), 54 O.R. (3d) 215 ("Black"), the Ontario Court of Appeal held that justiciability exists on a sliding scale; on the one end of the spectrum are matters that engage "high policy" like going to war or signing a treaty. These are archetypes of situations where the executive has room to act relatively unfettered by judicial supervision. On the other end of the spectrum are matters which directly implicate the "rights and expectations" of specific individuals, such as the revocation of a passport and the exercise of the royal prerogative of mercy. These latter decisions are reviewable given their direct impact on individual rights.

[23] In Black, the Court of Appeal ruled that the Prime Minister's actions in advising the Queen against conferring an honour on the plaintiff, fell within the Crown's honours prerogative, a prerogative power that is beyond the review of the courts. In so concluding, Laskin J.A. referred to the observations of Professors Wade and Hogg that in England and Canada, legislation has severely curtailed the scope of the Crown prerogative and statutory displacement of the prerogative has had the effect of "shrinking the prerogative powers of the Crown down to a very narrow compass." Laskin J.A. observed "thus, the basic question in this case is whether the Prime Minister's exercise of the honours prerogative affected a right or legitimate expectation enjoyed by Mr. Black and is therefore judicially reviewable". The court went on to conclude that Mr. Black lacked any right or legitimate expectation of receiving the honour and therefore the Prime Minister's decision was not judicially reviewable.

[24] On the question of whether the Ontario Superior Court has jurisdiction to review an exercise of Crown prerogative the court concluded that it does, in narrow circumstances. Section 18(1) of the Federal Courts Act, RSC 1985, c F-7, gives the Federal Court exclusive original jurisdiction to grant declaratory relief against any "federal board, commission or other tribunal" and section 2(1) of the Federal Court Act defines "federal board, commission or other tribunal" to mean "any body or any person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown," (underlining and emphasis added).

[25] The court held the exercise of powers pursuant to a prerogative of the Crown must be "under an order" to come within this definition, with the result that judicial review of the exercise of a Crown prerogative that is not exercised "pursuant to an order" (sometimes referred to as a "pure prerogative"), remain within the inherent jurisdiction of provincial courts. The Prime Minister's exercise of the Crown prerogative relating to the grant of honours was not under an order, hence he did not fall under the definition of "federal board, commission or other tribunal" and the Ontario Superior Court retained inherent jurisdiction in the matter.

[26] The Minister submits, I think correctly, that Black, a 2001 decision of the Ontario Court of Appeal, may no longer be good law in so far as it adopts an unduly restrictive analysis of the scope of Federal Court jurisdiction to review exercises of Crown Prerogative. In Hupacasath First Nations, Stratas J.A. of the Federal Court of Appeal commented on Black in these terms, at paras [46]-[48]:

"by adopting a purely textual approach ss. 2(1) of the Federal Courts Act ," the ONCA found that "subsection 2(1) does not empower the Federal Courts to review exercises of pure prerogative power. It only authorizes reviews of conduct under an "order made pursuant to a prerogative of the Crown." As there was no order under which the Prime Minister was acting, the Federal Courts could not entertain the matter. Only the Ontario Court system with its inherent jurisdiction could." Stratas J.A. went on to say, "certain jurisprudential developments have overtaken the reasoning of the Court of Appeal in Black. Its conclusion that the Federal Courts cannot review exercises of federal Crown prerogative power can stand no longer." Stratas J.A. referred to the Supreme Court's post-Black jurisprudence noting that "while the text of the provision may predominate in the analysis, the analysis cannot stop with the text as it did in Black. Instead, one must go on to examine the context of that text in the wider statute and its purpose."

[27] The judgement of the Ontario Court of Appeal in Ahani v. Canada (Attorney General) dealt with an IMR request received from the UN Committee. Mr. Ahani was a Convention refugee who was found by the Minister of Citizenship and Immigration to be a member of a terrorist organization and to be a danger to the security of Canada and was subject to a removal order. This finding was reviewed by the Federal Court and Federal Court of Appeal and upheld and a further appeal to the Supreme Court of Canada was dismissed.

[28] Having exhausted his domestic remedies, Ahani then filed a petition with the UN Committee alleging Canada was in violation of the Convention and subsequently the UN Committee issued an interim measures request to Canada to refrain from deporting Ahani (back to Iran) until the Committee had an opportunity to consider the petition. Canada advised it would not accede to the request. An application for an injunction staying the deportation was brought before Dambrot J. of this court, arguing Ahani had a constitutional right as a principle of fundamental justice guaranteed by s. 7 of the Charter, not to be removed from Canada until his petition to the United Nations Human Rights Committee had been considered and finally reported on. Dambrot J. declined to order an injunction, holding that there is no Charter protected right to enjoin executive action pursuant to a petition made to an international body whose request is not binding domestically. Dambrot J. also opined there can be no legitimate expectation that there would be no deportation pending consideration of a petition by the Committee, based on Canada's record of sometimes not acceding to interim measures requests.

[29] The respondents cross appealed Dambrot J.'s order, arguing that while acknowledging that a provincial superior court and the Federal Court have concurrent jurisdiction on constitutional issues concerning the application and enforcement of the provisions of the Immigration Act, nevertheless the provincial superior court should have declined jurisdiction in this matter. Laskin J.A. explained:

[21] Nonetheless, the respondents submit that the provincial superior court should decline jurisdiction in immigration matters in recognition of the Federal Court's expertise in this area of the law. Dambrot J. assumed jurisdiction, concluding that Ahani's application raised no immigration issues, but constitutional issues over which the Federal Court had no greater expertise than provincial superior courts. I agree with his conclusion. Therefore, I would dismiss the respondents' cross-appeal.

[30] On the specific question of the justiciability of the Minister's decision to accede to or not accede to an interim measures request, the court is assisted by and indeed bound by the following observations of Laskin J.A. in Ahani v. Canada (Attorney General) as to the significance of the State Parties to the Convention having made the policy choice to make the Committee's views and recommendations (including IMR requests) non-binding on them, (at paras. 32, 41, 42 and 44):

[32] A further answer to Ahani's submission is found in the nature of Canada's international commitment under the Covenant and the Protocol. The nature of that commitment is the second undisputed fact. In signing the Protocol, Canada did not agree to be bound by the final views of the Committee, nor did it even agree that it would stay its own domestic proceedings until the Committee gave its views. In other words, neither the Committee's views nor its interim measures requests are binding on Canada as a matter of international law, much less as a matter of domestic law. The party states that ratified the Covenant and the Optional Protocol turned their minds to the question of whether they should agree to be bound by the Committee's views, or whether they should at least agree to refrain from taking any action against an individual who had sought the Committee's views until they were known. They decided as a matter of policy that they should not, leaving each party state, on a case-by-case basis, free to accept or reject the Committee's final views, and equally free to accede to or not accede to an interim measures request.

[41] Ahani thus has no basis in domestic law and no basis in international law to ask a Canadian court to prevent his deportation. His right to remain in Canada ended with the Supreme Court of Canada's decision. And, as the Supreme Court of Canada found, throughout the entire deportation proceedings he was accorded full procedural fairness consistent with the dictates of fundamental justice in s. 7 of the Charter. He is not entitled to any more than that.

[42] By signing the Protocol, Canada did provide an individual like Ahani an opportunity to seek the Committee's views. But it qualified that right in two important ways. In any given case, Canada first reserved the right to reject the Committee's views, and, second, reserved the right to enforce its own laws before the Committee gave its views. In deporting Ahani, Canada is acting consistently with the terms under which it signed the Protocol. It is not denying Ahani procedural fairness or depriving him of any remedy to which he is entitled. Even under the Protocol, Ahani has no right to remain in Canada until the Committee gives its views. He can therefore hardly claim that the principles of fundamental justice give him that right.

[44] … Ahani's position is inconsistent. In acknowledging that the Committee's final views are not binding, he fails to take into account that the party states did not agree to await the Committee's views before enforcing their own laws. In asking that the process run its course, he glosses over the non-binding nature of an interim measures request. And in submitting that the process should run its course and a Canadian court should give effect to that submission by granting an injunction, Ahani seeks to turn a request by an international body -- and it is only a request -- into a constitutional obligation enforceable domestically in the provincial superior court. He cannot have it both ways. If Canada is free not to accept the Committee's views, it is also free not to accede to an interim measures request.

[31] In a more recent decision, Toussaint v. Canada (Attorney General), 2022 ONSC 4747, the plaintiff Toussaint, a visitor to Canada, was denied health care coverage pursuant to the Interim Federal Health Program between 2009 and 2013. She brought an application for judicial review to the Federal Court of Canada, appealed to the Federal Court of Appeal, and sought (and was refused) leave to appeal to the Supreme Court of Canada. In 2013, the respondent made a submission to the United Nations Human Rights Committee ("UNHRC") alleging that Canada had violated several obligations under international law including her right to life and non-discrimination under the International Covenant on Civil and Political Rights, 1966. In 2018 the UNHRC stated that Canada had violated the respondent's right to life recognized in the International Covenant and that Canada was required to provide the respondent with an effective remedy, including compensation and taking all steps necessary to prevent similar violations in the future. Canada disagreed with the UNHRC's views and stated that it would not follow its recommendations. The respondent then commenced an action against the federal government.

[32] The motion judge, Perell J., rejected the appellant's argument that the action was in essence a matter of judicial review within the exclusive jurisdiction of the Federal Court. He noted, first, that the Ontario court has concurrent jurisdiction with the Federal Court with respect to Charter claims against the federal government; and second, that the Minister's decision on whether to implement a recommendation of the UNHRC was an exercise of a Crown prerogative, and thus was outside the exclusive jurisdiction of the Federal Court. On appeal to the Ontario Court of Appeal, the motion judge's ruling was upheld, see 2023 ONCA 117 at para.[17]:

The motion judge rejected the appellant's argument that the action was in essence a matter of judicial review within the exclusive jurisdiction of the Federal Court. He noted, first, that the Ontario court has concurrent jurisdiction with the Federal Court with respect to Charter claims against the federal government; and second, that the Minister's decision on whether to implement a recommendation of the UNHRC was an exercise of a Crown prerogative, and thus was outside the exclusive jurisdiction of the Federal Court.

[33] In the present case, the Minister argues Mr. Sharif's application for judicial review should be dismissed because the UN Committee's IMR request is non-justiciable. It is a decision of the executive of the type that is ill-suited for review by the courts. In the court's view, there is no doubt the Minister's decision to not accede to the UN Committee's IMR request in relation to Mr. Sharif is an exercise of Crown prerogative. Judicial review is nevertheless an appropriate procedure where the rights of an individual are affected in a highly material way by government action. The IMR refusal here relates to Mr. Sharif specifically. His complaint (or his "communication") to the UN Committee was initiated by him and is about whether Canada has accorded him the rights due to him under articles 6, 7, 17 and 23 of the Convention. The Ontario Court of Appeal decisions in Ahani and Toussaint support at least the limited justiciability of the matters in issue. There appear not to be any matters of "high policy" at play here, the issue is the timing of the removal of a particular individual who has been found to represent a danger to Canada after going through a robust Danger Analysis process, which was then judicially reviewed in the Federal Court. The Minister's decision in the case at bar was made in the exercise of Crown prerogative but is nevertheless justiciable.

[34] The Minister then advances a seemingly contrary argument, taking the position Canada's decision to refuse the Committee's IMR falls within the Minister's statutory power over the detention and removal of inadmissible foreign nationals in Canada. As "this authority derives from statute and is not an exercise of prerogative power", it is argued, the Federal Court is therefore the proper forum for the Applicant to apply for judicial review of the Minister's decision.

[35] There is no question that the administration and enforcement of Canada's immigration laws are a fundamental responsibility of the Federal government and are subject to a comprehensive statutory and administrative overlay, all of which is subject to oversight in the Federal Court. It is the Federal Court that has the institutional expertise in immigration matters. The Minister points out the multiple statutory responsibilities imposed by federal statute referable to removals in the circumstances of this case, and concludes: (para. 44 Ministers factum)

Thus, by rejecting the Committee's IMR and therefore approving the Applicant's removal, the Minister exercised powers expressly granted him by ss. 4(2) and 48(2) of the IRPA regarding the timing of the enforcement on the removal order per the provisions of the IRPA. This makes the decision a quintessential federal administrative decision reviewable by the Federal Court.

[36] However, the IRPA does not direct the Minister with respect to the Ministers responsibilities concerning the Convention or the Optional Protocol, both entered into pursuant to Crown prerogative. The Crown prerogative includes (but is certainly not limited to) the making of representations to a foreign government and the making of treaties. Clearly, Canada has taken a firm and consistent international legal position before the UN on the non-binding nature of interim measures requests. The Minister's decision was made on behalf of Canada, as to how to respond to the request of an international organization. This was an exercise of Crown prerogative.

[37] As has been pointed out in the case law, there exists a concurrent jurisdiction between the Federal Court and the provincial superior courts in matters involving the Charter and in matters concerning the exercise of pure Crown prerogative. This application is an administrative law challenge of a decision made by the Minister under a Crown prerogative concerning the operation of an international treaty which Canada has not enacted in our domestic law. There is a concurrent jurisdiction between the Federal Court and the Ontario Superior Court. I reach that conclusion based on the authorities discussed above from the Ontario Court of Appeal, in particular Black (2001), Ahani (2002) and Toussaint (2023), and I would add, Hupacasath First Nation (2015) in the Federal Court of Appeal.

[38] As discussed, the position of the applicant is that the jurisdiction of the Federal Court and the Ontario Superior Court to review the Minister's decision in this matter is concurrent, which I respectfully accept as the correct jurisdictional conclusion. This court does not accept the position that the Minister's decision to not accede to the UN Committee's IMR request was simply a component of his statutory responsibilities to administer the immigration system generally and to carry out removals when required under the IPRC, so as to be within the exclusive jurisdiction of the Federal Court. On the contrary, I find the Minister's decision to not accede to the UN Committee's IMR request was made in the exercise of a Crown Prerogative involving international relations. Concurrent jurisdiction is the result.

The Minister's Decision is Reasonable

[39] The applicant, Mr. Sharif, argues the Minister's decision not to accede to the Committee's IMR request is not reasonable in three respects:

(a) it is contrary to the principle of responsive justification, which requires the decision maker to explain and justify decisions that have particularly harsh consequences for the affected individual;

(b) it neglects Canada's commitments under the Optional Protocol and related provisions of the ICCPR, which are factual and legal constraints bearing on the decision; and

(c) it neglects the principle of non-refoulement, a norm of customary international law and a legal constraint bearing on the decision

[40] In the court's opinion the principles of responsive justification and of non-refoulement, (a) and (c) above, were considered and evaluated by the Minister's delegate as part of the Danger Opinion Process. Responsive justification and the non-refoulement principles are closely aligned concepts which focus on the harm likely to be experienced by the applicant as a result or consequence of his removal back to the country where he is likely to suffer harm. The adequacy of the Danger Opinion process and conclusions reached in that process have been the subject of judicial review in the Federal Court. 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.

[41] In this court's view it would not be a proper exercise of this court's jurisdiction to attempt a further judicial review of the Danger Opinion process or a review of other issues the Federal Court has already judicially reviewed.

[42] Further, the applicant's counsel has presented this court with a thoughtful submission that the Danger Opinion analysis of the harm the applicant would encounter if returned to Somalia, balanced against the risks arising from his serious criminality in Canada is not an approach which is consonant with international law that views refoulement as an absolute prohibition where it exposes an individual to inhuman or degrading treatment or punishment. The absolute prohibition applies irrespective of the victim's conduct or the offence committed. It is contended the Minister was unreasonable in not considering or addressing this issue by way of reasons for his decision. The Minister responds that the Danger Opinion did address and weigh the harm Mr. Sharif would suffer in Somalia.

[43] While I do not accept the Minister's submission that this court lacks jurisdiction to review the IMR issue before the court, I am mindful the Federal Court might, in its discretion, be in a position to deal with certain issues raised before this court. The refoulement issue advanced by the applicant before this court and certain procedural issues arising from the Federal Court motions judge's reasons may amount to "very fundamental matters" or "truly exceptional matters" which could allow Mr. Sharif to avoid the preclusive rule that interlocutory decisions in immigration matters are not ordinarily subject to appeals pursuant to paragraph 72(2)(e) of IRPA. This provision states that "no appeal lies from the decision of the Court with respect to the application or with respect to an interlocutory judgment". However, as Chief Justice de Montigny explained in Canada (Public Safety and Emergency Preparedness), 2023 FCA 225 at paras 15-17, an appeal may be available "in exceptional circumstances" He stated:

[16]… paragraph 27(1)(c) of the Federal Courts Act, R.S.C. 1985, c. F-7 authorizes an appeal from an interlocutory judgment of the Federal Court. On the basis of that provision, a body of jurisprudence has developed, empowering this Court in exceptional circumstances to entertain an appeal of an interlocutory decision, or of a final decision where no question has been certified, despite the statutory bars found in the IRPA.

[17] In a long line of cases going back to at least the decision of this Court in Subhaschandran v. Canada (Solicitor General), 2005 FCA 27 at paras. 13, 17, it has been recognized that appellate review may be available when a case raises "very fundamental matters" or "truly exceptional matters" that "strike right at the rule of law": Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 144 at paras. 19-21.

In any event, this court is not persuaded that Mr. Sharif is necessarily precluded from pursuing relief in the Federal Court of Appeal. IMR requests do not arise under the IRPA per se but issues such as refoulement may be seen as a fundamental matter in the formulation of Danger Opinions.

[44] In any event, the applicant's principal complaint about the Minister's decision to not accede to the UN Committee's IMR request is that no reasons for the Minister's decision were provided to Mr. Sharif. The Minister's practice according to CBSA publications and as noted in the letter from the CBSA lawyer advising of the new date set for Mr. Sharif's removal, is normally to accede to IMR requests. No explanation however was given for the departure from normal practice in this case.

[45] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ("Vavilov"), provides that the decisions of governmental administrative decision makers are required, upon review, to meet a standard of reasonableness, as that concept is explained in the decision. There are specific exceptions where a less deferential correctness standard of review is applicable, however the decision in this case clearly attracts the normal reasonableness standard.

[46] Vavilov recognizes (at paras 76-78) that reasons are not required in all cases and in the absence of reasons, the reasonableness of the decision must be determined from the record as a whole before the court. 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 Federal Court proceedings. The Minister would have been aware of all of this information when making his decision to not accede to the UN Committee's Interim Measures Request.

[47] Vavilov instructs that a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. When judicially reviewing a decision in the absence of reasons, the reviewing court must look to the record as a whole to understand the decision. Where neither the record nor the larger context sheds light on the basis for the decision, as is arguably the case here, the reviewing court must examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable, (see Vavilov at paras: 137-138).

[48] Importantly, there is no domestic legislation constraining or even dealing with Interim Measures Requests. The Minister is under no statutory constraints as to acceding to or declining such requests from the UN Committee. The Optional Protocol specifically provides that Canada is not bound by UN Committee opinions once formulated nor by Interim Measures Requests. The Minister would be constrained by the Charter, but the present case does not involve a Charter challenge to the Minister's decision.

[49] In light of the foregoing, the Minister's position is that Mr. Sharif is not entitled to reasons for the Ministers decision to not accede to the UN Committee's IMR request. 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".

[50] 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. In this court's view it would be incongruous, in view of that state of the law, to engraft onto the Minister's prerogative to not accede to an IMR request, a domestic common law obligation to explain or justify the Minister's exercise of a Crown prerogative. This is in contrast to what Vavilov would require of a statutory decision maker under the IRPA or other domestic statutes. 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.

Disposition

[51] For the reasons provided herein the court finds that the Minister was not required to provide reasons for the exercise of his prerogative power to not accede to the UN Committee's Interim Measures (IMR) Request. Further, the court finds the Minister's decision to be reasonable, informed as it was by a review of the Danger Opinion Proceedings under the IRPA and the subsequent Federal Court judicial review to ensure fairness.

[52] This Application for Judicial Review is dismissed. The injunction granted by this court, staying the applicant's removal from Canada is varied to provide that the stay of removal will continue for a period of 30 days from the release of these reasons, in order to allow the applicant to seek a stay of his removal pending appeal or further proceedings, if so advised.

[53] Nothing in these reasons is intended to preclude or adjudicate on the availability of any exercise of jurisdiction by the Federal Court or Federal Court of Appeal which the applicant may choose to seek, in regard to any matters raised in this application.

[54] The costs of this application are reserved to the panel of the appellate court hearing the appeal, or as such court otherwise orders.

The Honourable Justice Charles Hackland

Released: September 18, 2025