



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 and Mélissa Mathieu, for the Minister of
    Public Safety and Emergency Preparedness, the Minister of Citizenship and
    Immigration and 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 applicants 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, Ahanis appeal from the Superior Courts 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] 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), 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), 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) 69 O.R. (2d) 253, (Ont. C.A.) leave
    denied, [1989] S.C.C.A. No. 322. See also
Reza v. Canada
[1994] 2
    S.C.R. 394 at para. 21.

[17]

The
    applicants 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 applicants 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] 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
Reza
where 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 OJ
    NO 2056 (C.A.) leave denied [1989] 2 SCR xi and
R. v. Zundel
[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] 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 applicants 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]

Montignys
    decision concerning the applicants detention, reported at [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 courts 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),
[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 adjudicators decision to detect any
    predisposition respecting the applicants 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 adjudicators decision.

(3)

Whether Section 1 of the
Charter of Rights and Freedoms
is a
    reasonable limit on the applicants 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.


