Date: 19971223
Docket: IMM-5294-97
OTTAWA, ONTARIO, DECEMBER 23, 1997
PRESENT: THE HONOURABLE JUSTICE MULDOON
BETWEEN:
TEJINDER PAL SINGH,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
SUPPLEMENTARY REASONS AND ORDER
[1] Sometime after the substantive decision in this matter - the application to stay execution of the deportation order which became unconditional as a result of the Minister's published opinion under section 46.01(1)(e)(ii) of the Immigration Act - the applicant's counsel sought to induce the Court to certify a question.
[2] The facsimile copy of counsel's letter, received by the Court, states the question for which certification is sought, as follows:
| In cases where there is a reasonable possibility that an individual will be subject to torture, persecution, or death in his or her country of citizenship, is there an infringement of that individual's rights under sections 7 and/or 12 of the Canadian Charter of Rights and Freedoms if that individual is removed from Canada pursuant to the issuance of an opinion by the Minister of Citizenship and Immigration that it would be contrary to the public interest to have that individual's refugee claim heard? |
[3] In terms of the circumstances of this case, the Minister has issued just such an opinion; and this Court has affirmed its legality and regularity, and declined to stay execution of the deportation order.
[4] Before considering this latest request on the applicant's behalf, the Court called upon the respondent to take the opportunity, if so inclined, to make submissions.
[5] The respondent's counsel, in written facsimile copy, opposes this request, in these words:
| Pursuant to the decision of the Federal Court of Appeal in Liyanagamage any certified question must be dispositive of the matter before the Court. In the case at bar, the issues have not been heard on their merits; the parties have simply argued as to whether an interim stay of removal should be granted. Accordingly, the test for the certification of the question had not been met. |
[6] The respondent's counsel is referring to a decision of the Appeal Division of this Court, cited: Liyanagamage v. Minister of Citizenship and Immigration or Liyanagamage v. Canada (1995) 176 N.R. 4. Mr. Justice Décary wrote (on p. 5) for the Court:
| [4] In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of "importance" by Catzman, J., in Rankin v. McLeod, Young, Weir Ltd. et al (1986), 57 O.R. (2d) 569 (H.C.), but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case. |
| (emphasis not in original text) |
[7] The question posed here is a very ordinary one in the general scheme of things, and in the circumstances of this case. First of all it presupposes that the applicant has discharged the burden of demonstrating that "there is a reasonable possibility that an individual will be subject to torture, persecution or death in [the] country of citizenship." Life is full of risks, even apart from those inflicted on innocent airline passengers by hijacking terrorists. Sometimes police agents, in a high emotion of self-righteous God-playing wrath, harm prisoners, even in Canada, which is not facing concerted organized terrorism. The State which employs those police officers ought ruthlessly to stamp out such police brutality, but it happens, even in peaceful societies. No country's deportation laws or extradition laws could ever operate if such a deplorable but everyday risk stopped their enforcement.
[8] Secondly, a higher standard ought reasonably to be achieved. The "reasonable possibility" of police brutality is, sadly, ever present even in "nice" countries, such as Canada. The proper and logically necessary standard is a "demonstrable probability" of such brutality. In this instance, Mr. Singh fell far short of discharging that onus.
[9] Also the Canadian Charter of Rights and Freedoms constrains only the federal and provincial governments and their controlled emanations, in Canada. The constitution makers in 1982 never intended to impart to it, and did not impart to it any extra-territorial reach. Canada can not, in the execution of Canadian laws, be responsible to see that other countries' governments suppress police brutality in their own territories. Canada, of course, does subscribe to the United Nations' refugee Convention, however lest it be forgotten the U.N. Convention itself (as quoted in the Court's earlier substantive reasons) - that U.N. document itself provides that a terrorist, by definition, cannot be a refugee. The various provisions of the Immigration Act earlier cited simply reify the Convention's exclusion of a terrorist from being declared a Convention refugee.
[10] But then what if it can be shown that, by State policy embracing capital punishment, an extradited criminal could "probably" (not merely "possibly") face State-inflicted death? It is true that extradition is not removal of an illegally present terrorist, but there is a close analogy which is instructive, especially since Mr. Singh's lawyer invoked sections 7 and 12 of the Charter.
[11] Because the Court does not enjoy the luxury of much time in responding to the matter raised after the substantive decision was rendered herein on December 22, 1997, reference is to headnotes, only, and in two decisions of the Supreme Court of Canada, both issued on September 26, 1991.
[12] First is Kindler v. Crosbie, Minister of Justice, Amnesty International (intervener) or simply., Kindler v. Canada (1992) 6 C.R.R. (2d) 193:
| Kindler v. Crosbie, Minister of Justice, |
| and Attorney General of Canada; |
| Amnesty International (intervener) |
| Indexed as: Kindler v. Canada (Minister of Justice) |
| Supreme Court of Canada, September 26, 1991. |
| Lamer C.J.C., La Forest, |
| L'Heureux-Dubé, Sopinka, Gonthier, |
| Cory and McLachlin JJ. |
| Fundamental justice - Extradition - Death penalty - Minister of Justice ordering extradition of fugitive to United States pursuant to s. 25 of Extradition Act without first seeking assurances pursuant to Extradition Treaty that death penalty would not be imposed or carried out - Neither s. 25 of Act nor actions of minister violating s. 7 of Charter - Extradition Act, R.S.C. 1985, c. E-23, s. 25 - Canadian Charter of Rights and Freedoms, s. 7. |
| Cruel and unusual treatment or punishment - Extradition - Death penalty - Minister of Justice ordering extradition of fugitive to United States pursuant to s. 25 of Extradition Act without first seeking assurances pursuant to Extradition Treaty that death penalty would not be imposed or carried out - Guarantee in s. 12 of Charter against cruel and unusual punishment not applying to s. 25 of Extradition Act or to ministerial acts done pursuant to that section - Decision to surrender fugitive not constituting cruel and unusual punishment by Canadian government - Extradition Act, R.S.C. 1985, C. E-23, s. 25 - Canadian Charter of Rights and Freedoms, s. 12. |
| The appellant was convicted of first degree murder, conspiracy to commit murder and kidnapping in Pennsylvania. The jury which convicted him recommended the imposition of the death penalty. Before he was sentenced, the appellant escaped from prison and fled to Canada, where he was subsequently arrested and committed for extradition. Although art. 6 of the Extradition Treaty between Canada and the United States provides that the country from which extradition of a fugitive has been requested may seek assurances from the arresting country that the death penalty will not be imposed where the offences involved carry the possibility of capital punishment, the Minister of Justice ordered final extradition, pursuant to s. 25 of the Extradition Act, without asking for such assurances. An application to review the minister's decision was dismissed by the Federal Court, Trial Division, and an appeal from that dismissal to the Federal Court of Appeal was also dismissed. The appellant appealed again. The constitutional questions before the court were: (1) whether s. 25 of the Extradition Act, to the extent that it permits the Minister of Justice to order the surrender of a fugitive without first seeking assurances that the death penalty will not be imposed, infringes s. 7 or s. 12 of the Canadian Charter of Rights and Freedoms; and (2) if so, whether s. 25 of the Act is a reasonable limit on the rights of a fugitive under s. 1 of the Charter. |
| Held: appeal dismissed. |
| ... |
| Per McLachlin J. (L'Heureux-Dubé and Gonthier JJ. concurring): |
| ... |
| The extradition process differs from the criminal trial process not only in purpose and procedure but, more important, in the factors which render it fair. Unlike the criminal procedure, extradition procedure is founded on the concepts or reciprocity, comity and respect for differences in other jurisdictions. Accordingly, the Canadian extradition process does not require conformity with Canadian norms and standards. The foreign system will not necessarily be considered fundamentally unjust because it operates without certain legal safeguards which we demand in our system of criminal justice. It is important to avoid extraterritorial application of the guarantee in the Charter under the guise of ruling extradition procedures unconstitutional. |
| (emphasis not in text) |
[13] The Supreme Court's concurrent decision in Reference re: Ng Extradition [by] (Canada) (1992) 6 C.R.R. (2d) 252 is to the identical effect.
[14] It must be remembered that the original Singh case: Singh et al v. The Queen [1985] 1 S.C.R. 177 revealed the Supreme Court of Canada to be concerned with the proper application of the Charter and the Canadian Bill of Rights within Canada, in the on-shore application, operation and enforcement of the then current version of the Immigration Act. The Supreme Court did not purport to interfere with the execution of that law of Canada for some possibility of what might happen abroad, but sought to make fairer the application of a law of Canada, in Canada.
[15] For these reasons the Court declines to certify the question posed by the applicant's counsel.
[16] THIS COURT ORDERS that the earlier above recited question formulated and posed by the applicant's counsel be not certified.
"F.C. Muldoon"
Judge