Date: 20040217
Docket: IMM-782-04
Citation: 2004 FC 245
Vancouver, British Columbia, Tuesday, the 17th day of February, 2004
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
EDWARD PATRICK BRANIGAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION and
THE SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] Edward Patrick Branigan (the "applicant") is a U.S. citizen. In September 2003 he drove across the U.S./Canada border south of Vancouver with the stated intention of skiing at Whistler. He was issued a Canadian visitor's visa valid for 6 months.
[2] He seeks a stay from a deportation order made against him on January 28th, 2004 by a member of the Immigration Division of the Immigration and Refugee Board (the "tribunal")
after an admissibility hearing conducted over several days pursuant to section 45 of the Immigration and Refugee Protection Act (IRPA).
[3] The admissibility hearing was triggered by a subsection 44(1) report dated December 11, 2003 and signed by immigration officer Swayze. That report was addressed to the Minister of Citizenship and Immigration (the "Minister") and stated her opinion that there were serious reasons to believe the applicant was inadmissible under subparagraph 36(1)(c) of the Act on grounds of serious criminality "for committing an act outside of Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum time of imprisonment of at least 10 years".
[4] On December 12th, 2003 the Minister's delegate referred the report to the Immigration Division pursuant to subsection 44(2) of the IRPA.
[5] Both the report and the referral were made on forms prescribed by the Minister. The report was signed by Ms. Swayze as an officer. The referral was signed by a person whose signature is not legible but underneath is found the printed words "Minister's delegate".
[6] Section 44 of the IRPA reads:
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44.(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
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44.(1) S'il estime que le résident permanent ou l'étranger qui se trouve au Canada est interdit de territoire, l'agent peut établir un rapport circonstancié, qu'il transmet au ministre.
(2) S'il estime le rapport bien fondé, le ministre peut déférer l'affaire à la Section de l'immigration pour enquête, sauf s'il s'agit d'un résident permanent interdit de territoire pour le seul motif qu'il n'a pas respecté l'obligation de résidence ou, dans les circonstances visées par les règlements, d'un étranger; il peut alors prendre une mesure de renvoi.
(3) L'agent ou la Section de l'immigration peut imposer les conditions qu'il estime nécessaires, notamment la remise d'une garantie d'exécution, au résident permanent ou à l'étranger qui fait l'objet d'un rapport ou d'une enquête ou, étant au Canada, d'une mesure de renvoi.
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A) Serious Issue
[7] The applicant raised a number of grounds which his counsel argued showed one or more serious issues.
i. Report and Referral not Authorized
[8] The applicant argues that the report and referral are invalid because on their face they do not disclose they were issued by persons designated by the Minister or to whom the Minister had delegated authority under section 6 of the IRPA which reads:
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6.(1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.
(2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.
(3) Notwithstanding subsection (2), the Minister may not delegate the power conferred by subsection 77(1) or the ability to make determinations under subsection 34(2) or 35(2) or paragraph 37(2)(a).
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6.(1) Le ministre désigne, individuellement ou par catégorie, les personnes qu'il charge, à titre d'agent, de l'application de tout ou partie des dispositions de la présente loi et précise les attributions attachées à leurs fonctions.
(2) Le ministre peut déléguer, par écrit, les attributions qui lui sont conférées par la présente loi et il n'est pas nécessaire de prouver l'authenticité de la délégation.
(3) Ne peuvent toutefois être déléguées les attributions conférées par le paragraphe 77(1) et la prise de décision au titre des dispositions suivantes_: 34(2), 35(2) et 37(2)a).
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[9] There is no merit to this argument because there is a presumption of validity and the applicant has adduced no evidence to impugn the authority of those persons who issued the documents. I need only cite a few paragraphs of what Justice Létourneau said in Canada (Minister of Human Resources Development) v. Weimer [1998] F.C.J. 809 (C.A.).
¶ 12 The approval of Mrs. Kukat's application for division of earnings was given on an official form issued by the Division of Unadjusted Pensionable Earnings ("Pension Credits") Canada Pension Plan and signed, in a section reserved to office use only, by a M. Ali under a heading called "Authorized Signature". As Walsh J. said in Kightley v. Registrar of Trade Marks et al. [See Note 6 below], "it would certainly require great temerity and irresponsibility on the part of a party signing such a letter purporting to be signed on behalf of a senior officer if he did not have the authority to so act". [emphasis mine]
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Note 6: (1982), 65 C.P.R. (2d) 36, at p. 42 (F.C.T.D.)
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¶ 13 The fact is that a person who signs, or purports to sign, for a senior officer in a department benefits from a presumption that he or she has the authority that he or she purports to exercise until such time as the presumption is rebutted [See Note 7 below].
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Note 7: Ali v. Minister of Manpower and Immigration, [1976] 1 F.C. 185, at pp. 188-89 (Fed. C.A.); Molson Companies Ltd. v. John Labatt Ltd. et al., (1984), 1 C.P.R. (3d) 329, at p. 334 (F.C.T.D.)
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¶ 14 No evidence whatsoever has been adduced by the Respondent which could cast the slightest doubt that the person who signed was not authorized to sign the approval and which could have, if not rebutted, at least sufficiently undermined the presumption of validity which attaches to the signature of an official document so as to displace the burden and put on governmental officials the obligation to establish the validity of the signature as well as the existence of a proper authority vested in the signatory. Mere unsubstantiated allegations or speculations by the Respondent are not sufficient to displace the presumed authority under subsection 24(2) of the Interpretation Act and the presumption of validity of the signature.
ii. The Delegation and Designation Gap
[10] The applicant argues a gap or void was created in the flow of designation and delegation of authority on December 12, 2003 when the Canada Border Services Agency (CBSA) was created. I see no merit to this argument. This argument cannot affect the validity of Ms. Swayze's report dated December 11th, 2003 thus made under the old regime. It is an issue in respect of the Minister's delegate's referral made on December 12th, 2003.
[11] The CBSA was created on December 12th, 2004 by Order in Council P.C. 2003-2059 made under the Financial Administration Act (FAA). The Intelligence and Enforcement Operations Branch of the Department of Citizenship and Immigration was added to the FAA as a department for the purposes of that Act to be known as the CBSA and the Minister of Citizenship and Immigration was designated the appropriate Minister over the new agency.
[12] By P.C. 2003-2061, pursuant to the Public Service Rearrangement and Transfer of Duties Act (the "Act") the supervision and control of the CBSA was transferred from the Minister to the Solicitor General of Canada, effective December 12, 2003 (the "new Minister").
[13] Also effective December 12, 2003, pursuant to the Act, the following portions of the public service of Canada were transferred to the CBSA:
(i) the Vancouver Enforcement Office and the Intelligence Unit, Vancouver
(ii) those portions of the offices in Canada, other than ports of entry, that deal on a full-time basis with enforcement (removals, detention, investigations, pre-removal risk assessments, hearings, appeals, interventions and war crimes) and intelligence
[14] On that same day, December 12th, 2003, the Solicitor General for Canada, pursuant to subsections 6(1) and 6(2) of the IRPA, designated or delegated to specified classes of public servants to act under section 44 of the IRPA. Counsel for the respondents also points to section 3 of the Act which reads:
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3.Where under this Act, or under any other lawful authority, any power, duty or function, or the control or supervision of any portion of the public service, is transferred from one minister to another, or from one department or portion of the public service to another, the minister, department or portion of the public service to whom or which the power, duty, function, control or supervision is transferred, and the appropriate officers of that department or portion of the public service, shall, in relation thereto, be substituted for and have and carry out the respective powers and duties that formerly belonged
to or were to be carried out by the minister, department |
3.Le ministre, le ministère ou le secteur de l'administration publique auxquels sont transférées, sous le régime de la présente loi ou en vertu de toute autre habilitation, des attributions ou responsabilités, ainsi que leurs fonctionnaires compétents, ont le plein exercice des pouvoirs et fonctions dévolus à leurs prédécesseurs.
S.R., ch. P-34, art. 3.
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or portion of the public service and the respective officers of the department or portion of the public service from whom or which the power, duty, function, control or supervision is so transferred.
R.S., c. P-34, s. 3. [emphasis mine]
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[15] On the basis of the above, I see no gap in the chain of authority from the appropriate Minister to her delegate in respect of the referral in this case to the Immigration Division.
[16] It is true, however, that from the material quoted above I do not know whether the Minister's delegate falls within one of the classes in Column 4 of the designation/delegation made by the new Minister.
[17] This issue is resolved in two ways. First, the presumption of validity applies. Second, over the objection of the applicant I considered the affidavit of Cindy Comrie. I do so on the authority of the Federal Court of Appeal's decision in Ali v. Minister of Manpower and Immigration [1976] 1 F.C. 185 where at page 188 the Chief Justice stated whether a person had authority (to issue a direction) is a question of fact that, in appropriate cases, can be made the subject of evidence in that Court.
[18] Cindy Comrie states she is a Hearings Officer and Supervisor of the Investigations Unit of the Vancouver Enforcement Office of the CBSA. The category of a Hearings Officer is one of the classes of persons the new Minister's delegation of December 12th, 2003 (as it was in the Minister's delegation of July 2003) authorized to make a section 44(2) referral. She also deposed that Andrea Swayze was an Enforcement Officer, a class of persons covered to make a subsection 41(1) report.
(iii) Disguised Extradition
[19] The applicant raised as a serious issue that section 44 IRPA procedure was unlawful because it was embarked upon for an improper purpose as a substitution for the stricter procedures provided for in the Extradition Act.
[20] Counsel for the applicant effectively abandoned this issue as a serious issue as he could distinguish this case from the Federal Court of Appeal's decision in Canada (Minister of Citizenship and Immigration v. Legault (1997) 42 Imm. L.R. (2d) 192 and the decision of Justice Rothstein, then a member of the Federal Court, Trial Division, in Halm v. Minister of Employment (1995) 104 F.T.R. 81.
[21] I believe he was correct in doing so.
[22] In Halm, supra Justice Rothstein drew a distinction between extradition and deportation. He stated this at paragraph 18:
¶ 18 Initially, I would observe that the argument of counsel for the applicant misses the basic difference between deportation and extradition. Deportation occurs when a state wishes to expel a person. Extradition occurs when a states wishes to retrieve a person, and can only be carried out when a request for extradition has been received. Canada cannot be precluded from taking steps to deport an individual merely because the effect of deportation may be that the individual faces greater sanctions in the country to which he is deported than if he is extradited. Canada has no control over whether a foreign State wishes a person extradited, and the Government of Canada cannot be precluded from acting in the public interest to deport undesirable aliens.
[23] Justice Rothstein quoted from Chief Justice Cartright's reasons in Moore v. Minister of Manpower and Immigration (1968) 69 D.L.R. (2d) 273 (S.C.C.) as follows:
To decide that the deportation proceedings are a sham or not bona fide it would be necessary to hold that the Minister did not genuinely consider it in the public interest to expel the appellant. This is the view expressed in the Soblen case, supra, and I agree with it.
[24] He observed (1) the onus on an applicant to demonstrate bad faith or improper purpose through a disguised extradition was a heavy onus and (2) the fact that there had been communication between Canadian and U.S. authorities did not demonstrate bad faith or improper purpose and relied on Justice Reed's decision in a prior case involving the same parties (1995) 91 F.T.R. 106.
[25] Justice Rothstein concluded at paragraph 25:
¶ 25 Reed J. rejected these arguments as do I. The fact that the Minister chose the most serious of the applicant's crimes in the United States upon which to base deportation proceedings is not evidence of bad faith or improper purpose. As well, although some officials of the Minister attempted to deport the applicant, it was the intervention of the Minister's counsel that prevented it. The fact that the United States wanted the applicant back or that there were communications between U.S. and Canadian officials is also not evidence of bad faith or improper motive. Nor does the issuance of a conditional request for extradition by the United States indicate that anything improper was done by Canada in taking steps to deport the applicant. Indeed, counsel does not argue that the applicant is not undesirable or that he should not be forced to leave Canada.
[26] To the extent counsel for the applicant shifted his argument from disguised extradition to one of sufficiency of evidence, he also fails. The tribunal specifically relied on the Legault case, supra, in concluding the evidence before her, namely, a U.S. indictment, documentation from the U.S. Department of Justice confirming through fingerprints the applicant was the same person who was wanted in the United States and the results of items seized pursuant to a search warrant executed at his home in the United States, was sufficient to constitute reasonable grounds to believe he had committed an act in the United States contrary to the U.S. code.
[27] In Legault, similar evidence was proferred and found sufficient by the Federal Court of Appeal.
iv. Breach of Fairness
[28] The last serious issue raised by counsel for the applicant is a breach of fairness that he was not allowed to subpoena and cross-examine Ms. Swayze.
[29] At page 99 of the applicant's record, the tribunal ruled Ms. Swayze had simply made a report which is not evidence unlike what happened in Cheung v. Minister of Employment and Immigration [1981] 2 F.C. 764 (C.A.)
[30] I am not persuaded the applicant has raised a serious issue here.
B. Irreparable Harm
[31] I agree with counsel for the Ministers, the applicant has not shown he would suffer irreparable harm if the stay application is not granted.
[32] Apart from the fact that he has a month or so left on his visitor's visa, he has no connection to Canada.
[33] His counsel argued, if he is deported his right to stay in Canada under the time left under his visitor's visa will be lost forever. There is no substance to this argument. Clearly, subsection 45(d) of the IRPA mandated the tribunal to issue a deportation order to a foreign national who had been authorized to enter Canada if satisfied that that foreign national is inadmissible.
[34] There is also no substance to his argument that his application for leave and judicial review is rendered moot if the stay is not granted. If leave is obtained, the judicial review application may be pursued and the effect of quashing the deportation order means he is able to return to Canada without a Minister's permit if he otherwise is admissible.
[35] The applicant did not raise as irreparable harm any elements of the U.S. criminal justice system. If he had he would have had to contend with the Federal Court of Appeal's decision in Canada (Minister of Manpower and Immigration) v. Satiacum, [1989] F.C.J. No. 505.
C. Balance of Convenience
[36] In the circumstance, the balance of convenience in enforcing the deportation order as soon as practicable favours the Minsters.
ORDER
[37] This stay application is dismissed.
(Sgd.) "F. Lemieux"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-782-04
STYLE OF CAUSE: Edward Patrick Branigan v
The Minister of Citizenship and Immigration et al.
PLACE OF HEARING: Vancouver BC
DATE OF HEARING: February 16th, 2004
REASONS FOR ORDER AND ORDER: LEMIEUX J.
DATED: February 17, 2004
APPEARANCES:
William J. Macintosh FOR APPLICANT
R. Keith Reimer FOR RESPONDENTS
SOLICITORS OF RECORD:
William Macintosh Associates FOR APPLICANT
Surrey, British Columbia
Morris Rosenberg FOR RESPONDENTS
Deputy Attorney General of Canada