Ottawa, Ontario, March 1, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
SOLICITOR GENERAL OF CANADAand
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Applicant has requested that I certify two questions arising from my decision in this case dated February 3, 2006. They are as follows:
1. What is the standard of review in cases where it is argued that the removal officer's decision was unreasonable and that he ignored evidence or that his reasons for not deferring removal were, otherwise, unreasonable?
2. What is the extent of the removal officer's decision when faced with a request to defer? In particular, should the best interests of affected children be taken into consideration and, if so, to what extent?
[2] The Respondent opposes the request for certification.
[3] In deciding whether to certify a question, I must first be satisfied that it is a serious question of general importance which would be dispositive of the appeal: see Minister of Citizenship and Immigration v. Zazai 2004 FCA 89.
[4] Counsel for the Applicant observes that there is a lack of unanimity in the decisions from this Court with respect to the standard of review from decisions by removal officers. That can be, of course, a factor in deciding whether to certify a question.
[5] Counsel for the Respondent points out - correctly I think - that the standard of review for a particular decision-maker may vary according to the nature of the question under consideration. Here the issues under consideration were fact-based and, therefore, deserving of a higher standard of deference. Because the adoption of a standard of review will be specific to each deferral situation, the precedential value and the general importance of such decisions are substantially diminished.
[6] But even if I was wrong in adopting a standard of patent unreasonableness, the outcome would not have changed. I did not find any mischaracterization or error by the removal officer in his description of the Applicant's criminal past. Thus, even if the standard I had applied was one of reasonableness, it would not have made any difference to the outcome of the case.
[7] The second question advanced by the Applicant concerns the interests of affected children. While it is correct that the short-term, practical interests of children affected by the deportation of a parent have frequently been considered - and as I noted, should be considered - it is well settled by the jurisprudence that the kind of general hardship concerns expressed to the removal officer here do not engage his discretion. Therefore, despite the fact that the legal principles surrounding the scope of a removal officer's discretion are somewhat unsettled, the facts of this case do not bring it within the range of legal uncertainty.
[8] In the result, the questions posed by the Applicant would not be dispositive of the case and I decline to certify a question.
ORDER
THIS COURT ORDERS that no question will be certified.
" R. L. Barnes "
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1100-05
STYLE OF CAUSE: LEON MELBOURNE GRIFFITHS
and
SOLICITOR GENERAL OF CANADA
AND MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 24, 2006
REASONS FOR ORDER
AND ORDER BY : THE HONOURABLE MR JUSTICE BARNES
APPEARANCES:
Osborne G. Barnwell FOR APPLICANT
Martin Anderson FOR RESPONDENT
SOLICITORS OF RECORD:
Osborne G. Barnwell
Barrister and Solicitor
John H. Sims Q.C.