Date: 19980311
Docket: IMM-967-98
BETWEEN:
JOHNNY STEVE JACOBS
Applicant
AND:
MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench on March 6, 1998
and transcribed, with editorial modifications,
to comply with section 51 of the Federal Court Act.)
GIBSON J.:
[1] I am going to dismiss this application this afternoon and, as you can see, for two reasons, I am going to record what I now have to say. First, I think that both the applicant and his counsel deserve a reasoned explanation for my decision in all of the circumstances of this matter and second, where I give reasons from the bench for a decision, I am obliged by section 51 of the Federal Court Act,1 to file a copy of those reasons in the Registry, so that counsel and others who might be interested, will have an opportunity to review them. That is a difficult obligation to comply with in the absence of a Court reporter and in the absence of an installed recording device and that is the reason why I am using a portable recording device, to record what I have to say.
[2] The hearing this afternoon arises out of an application for leave and for judicial review of two decisions. First, a decision of adjudicator McBrien to hold a detention hearing in respect of the applicant, and that decision is indicated to have been made on March 5, 1998; and second, a decision of the same adjudicator to continue an immigration inquiry or convene a new inquiry, which decision was made on the same date.
[3] I emphasize that those are the two decisions in respect of which leave and judicial review are sought. Neither of those decisions directly relates to the arrest without warrant of the applicant, Johnny Steve Jacobs, which apparently also took place on March 5.
[4] On the basis of the application for leave and for judicial review, the applicant has brought an application for interim relief. Interim relief, by its very nature, is relief that is short term to cover the time between when the application for judicial review was commenced and, at the latest, the time when that application for judicial review is finally disposed of. The nature of the interim relief requested is as follows: an order to stay a detention hearing scheduled for March 6, 1998 at 9:00 a.m., a time that by the time this hearing started, had passed; second, a declaration that the applicant is illegally detained on the facts on the record; and third, a stay of any further inquiry pending determination of the leave application or, put another way as I interpret it, a stay of any inquiry until the judicial review application that underlies this application for interim relief is finally disposed of.
[5] The only evidence before the Court on this application for interim relief is the affidavit of the applicant, together with a number of exhibits to that affidavit. I am not critical in any sense of the fact that there is no other evidence before the Court today. This matter was brought on on extremely short notice and I commend counsel for the applicant for putting together as much material as he was able to on such short notice, that is, between yesterday afternoon and 9:00 o'clock or thereabouts this morning when this material was filed. Neither am I critical of counsel for the respondent who has filed no evidence before this hearing this afternoon. The reality is that he had even less time in which to do so, in which to prepare, than did counsel for the applicant.
[6] In order to be successful on an application for interim relief such as this, the law requires that the applicant demonstrate three things: first, that on the underlying application, the application for leave and for judicial review, there is a serious issue to be tried; second, that unless the interim relief that is sought is granted, the applicant, that is Mr. Jacobs, will suffer irreparable harm as that expression has been interpreted by the courts; and third, that the balance of convenience lies in favour of Mr. Jacobs, that is to say, there must be more to be said for granting the relief in his favour then there is to be said for the respondent in withholding the relief.2
[7] Counsel for the applicant in his argument addressed, albeit somewhat obliquely, all three elements of the test but quite frankly in respect of each of the reliefs sought, and that is the reason I reach the decision I do, not to the Court's satisfaction. I will deal with the three interim reliefs that are sought in order.
[8] The first is an order to stay a detention hearing scheduled for this morning, that is for an hour that preceded the hour at which this hearing took place. I understand from counsel for the applicant that that hearing did not proceed and that it is now rescheduled, in accordance with law, for sometime on Monday, March 9. Given the fact that Mr. Jacobs is in detention, it is difficult to understand, quite frankly, why he or counsel on his behalf would not favour a detention review at which a full opportunity should be presented to the applicant and his counsel to explain why, whether or not the warrantless arrest was justified, the continued detention is not warranted. For the applicant to seek to preclude himself from the opportunity to make that argument is difficult for the Court to understand, particularly when one of the elements of the test if he is to succeed before me, is to the effect that, if he is not granted a stay of that hearing, he will suffer irreparable harm. It is the Court's conclusion that he is much more likely to suffer irreparable harm if he is precluded from making a full and fair argument that he should not be held in detention. Since the three part test is conjunctive, not disjunctive, and the applicant must satisfy each of the three elements, and since in respect of the first relief that he is seeking, he has failed to convince me that he will suffer irreparable harm if the detention review is allowed to proceed, I will not grant that relief.
[9] The second relief sought is a declaration that, on the facts on the record, the applicant is illegally detained. Quite simply, that relief is not interim relief in respect of the application for leave and for judicial review. Counsel for the applicant pleaded with great sincerity and fervour that the warrantless arrest of Mr. Jacobs on March 5 was not only completely unjustified and outside the law, but was carried out with unreasonable fervour and elements of conduct that would bring no credit on the respondent's ministry. I make no finding as to whether those allegations, also set out in the affidavit of Mr. Jacobs, and, as I have said, pleaded by his counsel with great sincerity this afternoon are accurate. I suspect that if time had permitted, an affidavit on behalf of the respondent detailing the same events would have presented a different side. But that is pure speculation on my part. If there was here an improper arrest, if the circumstances surrounding that arrest were improper, there is a means by which relief can be gained. This application is simply not that means. For those reasons, the second requested relief will also be rejected.
[10] The third interim relief requested is a stay of any further inquiry pending determination of the leave and judicial review application filed concurrently with this motion. Once again, without focussing on the first of the three elements of the test, that is, serious issue to be tried, I will go directly to the issue of irreparable harm. An inquiry is an opportunity for a person in the position of Mr. Jacobs to present evidence going to the reason why an order for removal from Canada should not be issued against him. Once again, I find it difficult to understand how Mr. Jacobs, in the circumstances attested to in his affidavit can wish for other than a full and fair opportunity, I emphasize full and fair, to present the case why he should not be ordered removed from Canada. I cannot conclude that to allow an inquiry to continue or a new inquiry to take place, and I make no finding as to which of those is appropriate in the circumstances of this matter, could be said to result in irreparable harm to the applicant. Quite frankly, on the basis of the material before me, I conclude that quite the opposite is the case, assuming once again that the inquiry will be both full and fair. Thus, the third form of interim relief requested will also be denied and, in the result, this application will be dismissed.
[11] In reaching the conclusion that I have this afternoon, I do not want to be interpreted as minimizing the issues potentially at stake in the efforts by the respondent to remove Mr. Jacobs from Canada back to the United States from whence he came. Equally, I do not want to be interpreted as minimizing, in any way, the seriousness of some of the allegations made by Mr. Jacobs in his affidavit regarding the way the inquiry process has proceeded to this time and the way his warrantless arrest was effected. I emphasize I make no finding with regard to those allegations, and that is what they are, allegations. But I do want to record that, if any or all of those allegations are accurate, the process to this point of time would cast no credit on the respondent's ministry in the way it carries out its important and statutorily based duties on behalf of the respondent and the Government of Canada.
[12] The application for leave and for judicial review will proceed in the ordinary way. The sole impact of the decision this afternoon is that no interim relief will be granted.
___________________________
Judge
Ottawa, Ontario
March 12 , 1998
__________________2 RJR-MacDonald Inc. v Canada (Attorney General) [1994] 1 S.C.R. 311