2021 FC 228
IMM-5410-19
Gurminder Singh Toor (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
IMM-5510-19
Kirandeep Kaur Toor (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Toor v. Canada (Citizenship and Immigration)
Federal Court, Roussel J.—Held by videoconference (between Ottawa and Calgary), August 20, 2020; Ottawa, March 16, 2021.
Citizenship and Immigration — Immigration Practice — Judicial review of Immigration and Refugee Board, Immigration Division (ID) decision denying applicants’ request for adjournment of their admissibility hearing before ID until criminal charges against them determined — Applicants, Indian citizens, husband, wife — Charged with certain offences under Controlled Drugs and Substances Act (CDSA) when entering Canada from United States — Also facing allegations of inadmissibility pursuant to Immigration and Refugee Protection Act (IRPA), s. 37(1)(b) for engaging in transnational crime — During admissibility proceedings, applicants filed separate motions seeking to adjourn their hearing — Applicants submitted in particular that ID’s decision unreasonable because violated their right to fair hearing, right against self-incrimination under Canadian Charter of Rights and Freedoms, ss. 7, 13 — Contended that ID failed to apply Immigration Division Rules, r. 43(2), unreasonably faulted them for not disclosing evidence they feared would not be protected in criminal proceedings — Whether Court should exercise its discretion to intervene before final decision rendered; whether ID’s refusal to adjourn admissibility proceedings reasonable — Present matter one of rare situations where necessary to exercise discretion, intervene before final decision rendered — Right against self-incrimination one of fundamental principles of criminal law; constitutionally entrenched by Charter, ss. 11(c), 13; it enjoys residual protection under Charter, ss. 7, 24 — Use immunity, derivative use immunity constituting procedural safeguards against testimonial self-incrimination created by case law — In present case, applicants not previously testifying, not compelled to testify — If their testimony before ID gave rise to incriminating derivative evidence that did not attract immunity at criminal trials, judicial review at end of proceedings would not provide effective remedy as testimony would have already been given — Given uncertainty in case law regarding application of derivative use immunity to applicants if they testified voluntarily at admissibility hearing, finding that judicial review could fail to provide effective remedy, threshold for early intervention met — ID not erring by not considering factors listed in Immigration Division Rules, r. 43(2) — Reasonable for ID to find that potential use of any derivative evidence was at that point highly speculative, conjectural — Applicants’ request based on circumstances that were undefined, speculative — Given this determination, not necessary to determine whether applicants’ voluntary testimony would attract protection of derivative use immunity — Furthermore, ID reasonably suggested that applicants request other protective measures that could address their concerns, allow admissibility hearings to proceed in timely manner — Applicants failed to demonstrate that specific procedural mechanisms would not address their concerns of fairness, confidentiality regarding potential use of derivative evidence that could result from their testimony if they chose to testify — Applications dismissed.
These were applications for judicial review of a decision of the Immigration Division (ID) of the Immigration and Refugee Board denying the applicants’ request for an adjournment of their admissibility hearing before the ID until the criminal charges against them were finally determined. The ID denied their request for an adjournment and issued written reasons thereafter.
The applicants are husband and wife, both citizens of India. They were charged with importing cocaine and methamphetamine pursuant to subsection 6(1) of the Controlled Drugs and Substances Act (CDSA) and with possession of cocaine and methamphetamine pursuant to subsection 5(2) of the CDSA when entering Canada from the United States at a port of entry in Alberta. They were also facing allegations of inadmissibility pursuant to paragraph 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) for engaging in transnational crime. In the course of their admissibility proceedings, the applicants filed separate motions seeking to adjourn their hearing.
The applicants submitted that the ID’s decision was unreasonable because it violated their right to a fair hearing and their right against self-incrimination under sections 7 and 13 of the Canadian Charter of Rights and Freedoms. They argued that the ID’s refusal to adjourn its proceedings placed them in an untenable and unfair position of choosing between testifying voluntarily at the ID hearing, thereby revealing their criminal defence to the Crown and their co-accused (for the male applicant, his wife and for the female applicant, her husband), as well as waiving the Charter protection of derivative use immunity, or remaining silent at their admissibility hearing and thereby, not addressing the allegations made against them. In addition, they contended that the ID failed to apply subsection 43(2) of the Immigration Division Rules and unreasonably faulted them for not disclosing the evidence that they feared would not be protected in the criminal proceedings. In response, the respondent submitted that the Court should dismiss the applications for judicial review because they were premature given the interlocutory nature of the ID’s decision. In the event the Court was prepared to entertain the applications, the respondent submitted that the ID reasonably concluded that an adjournment was not warranted since the request was based on speculation and issues outside the procedural purview of the ID.
The issues were whether the Court should exercise its discretion to intervene before a final decision was rendered; and whether the ID’s refusal to adjourn the admissibility proceedings was reasonable.
Held, the applications should be dismissed.
It is settled case law that absent exceptional circumstances, the courts will not interfere with interlocutory decisions until the ongoing administrative processes have been completed and until all other available effective remedies have been exhausted. While the “exceptional circumstances” exception is very narrow and concerns of procedural fairness do not usually meet the requisite threshold, this was one of those rare situations where it was necessary to exercise discretion and intervene before a final decision had been rendered. The right against self-incrimination is one of the fundamental principles of criminal law. It is constitutionally entrenched by paragraph 11(c) and section 13 of the Charter and it enjoys residual protection under sections 7 and 24 of the Charter. It is also protected by section 5 of the Canada Evidence Act (CEA). Some of the procedural safeguards against testimonial self-incrimination that have emerged in case law include use immunity and derivative use immunity. Use immunity, under section 5 of the CEA and section 13 of the Charter, serves to protect the individual from having compelled incriminating testimony used directly against him or her in a subsequent proceeding. Derivative use immunity is available under the residual protection of section 7 of the Charter and “insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means”. Derivative evidence has been defined as evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the witness’s testimony. In this case, the applicants did not previously testify and were not compelled to testify. If their testimony before the ID gave rise to incriminating derivative evidence that did not attract immunity at the criminal trials, judicial review at the end of the proceedings would not provide an effective remedy as the testimony would have already been given. This was so regardless of the outcome in the admissibility proceedings. The applicants would be denied the very remedy they were seeking, namely the right not to disclose that evidence to the Crown or the co-accused. Given the uncertainty in the case law regarding the application of derivative use immunity to the applicants if they testified voluntarily at their admissibility hearing and the finding that judicial review at the end of the proceedings could fail to provide an effective remedy, the threshold for early intervention was met.
The ID did not err by not considering the factors listed in subsection 43(2) of the ID Rules, a provision that governs “application[s] to change the date or time of a hearing”. When the applicants made their request for an adjournment, the hearing date and time were not set. Their request was made in the context of scheduling the date for the hearing. There was no hearing date to change. Even if the ID was required to consider the factors set out in subsection 43(2) of the ID Rules, the ID could not be faulted for not specifically addressing the factors that the applicants did not themselves rely on to request the adjournment. Moreover, since there is no absolute protection against self-incrimination, it was incumbent on the applicants to demonstrate that the continuation of the admissibility proceedings would prejudicially affect their right to a fair hearing and their right against self-incrimination. In this case, the applicants did not articulate before the ID the nature of the evidence they may have to give in order to avoid being found inadmissible, nor did they explain how that evidence could assist the Crown in the criminal proceedings. Not all derivative evidence is necessarily incriminating. The evidentiary disclosure in the criminal proceedings was also incomplete. It was reasonable for the ID to find that the potential use of any derivative evidence was at that point highly speculative and conjectural. The applicants’ request was based on a set of circumstances that were both undefined and speculative. Vague allegations are not enough. Given this determination, it was not necessary to determine at that point whether the applicants’ voluntary testimony would attract the protection of derivative use immunity. Furthermore, the ID reasonably suggested that the applicants request other protective measures that could address their concerns and allow the admissibility hearings to proceed in a timely manner. The applicants failed to demonstrate that procedural mechanisms such as subsection 44(2) of the Rules or subparagraph 166(b)(ii) of the IRPA would not address their concerns of fairness and confidentiality regarding the potential use of derivative evidence that could result from their testimony if they chose to testify.
In conclusion, the applicants failed to establish that in refusing their request for an adjournment of the admissibility hearing, the ID unreasonably placed them in a position that compromised their sections 7 and 13 Charter rights to a fair hearing and their right against self-incrimination or breached their rights to procedural fairness or natural justice.
STATUTES AND REGULATIONS CITED
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 11(c), 13, 24.
Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5(2), 6(1).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 34(1)(a),(f), 37(1)(b), 166(b)(ii).
Immigration Division Rules, SOR/2002-229, rr. 43(2), 44(2).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 31.04(2).
CASES CITED
APPLIED:
C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121.
DISTINGUISHED:
Wang v. Canada (Public Safety and Emergency Preparedness), 2017 FC 690; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311.
CONSIDERED:
Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Seth v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 348, (1993), 105 D.L.R. (4th) 365 (C.A.).
REFERRED TO:
Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364; Constantinescu v. Canada (Attorney General), 2019 FCA 315; Agnaou v. Canada (Attorney General), 2019 FCA 264; Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2017 FCA 241, 154 C.P.R. (4th) 165; Forner v. Professional Institute of the Public Service of Canada, 2016 FCA 35, 481 N.R. 159; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 F.C.R. 467; Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, [2019] 4 F.C.R. 217; Girouard v. Inquiry Committee Constituted Under the Procedures for Dealing With Complaints Made to the Canadian Judicial Council About Federally Appointed Judges, 2014 FC 1175; Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911; R. v. S. (R.J.), [1995] 1 S.C.R. 451, (1995), 121 D.L.R. (4th) 589; R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704; Handasamy v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1389, 48 Imm. L.R. (4th) 268; Bruzzese v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1119, [2017] 3 F.C.R. 272; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, (1995), 99 C.C.C. (3d) 193; Akinsuyi v. Canada (Citizenship and Immigration), 2015 FC 1397; Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 F.C.R. 271; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229; Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199; Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211; Zhang v. Canada (Citizenship and Immigration), 2013 FCA 168, [2014] 4 F.C.R. 290; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129; Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89, 36 Imm. L.R. (3d) 167; Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL) (C.A.).
APPLICATIONS for judicial review of a decision of the Immigration Division (ID) of the Immigration and Refugee Board denying the applicants’ request for an adjournment of their admissibility hearing before the ID until the criminal charges against the applicants were finally determined. Applications dismissed.
APPEARANCES
Michael Greene, Q.C., for applicant Kirandeep Kaur Toor.
David Matas for applicant Garminder Singh Toor.
Galina Bining for respondent.
SOLICITORS OF RECORD
Sherritt Greene, Calgary, for applicant Kirandeep Kaur Toor.
David Matas, Winnipeg, for applicant Garminder Singh Toor.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
Roussel J.:
I. Overview
[1] The applicants are husband and wife, both citizens of India. In December 2017, they were charged with importing cocaine and methamphetamine pursuant to subsection 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), and with possession of cocaine and methamphetamine pursuant to subsection 5(2) of the CDSA, when entering Canada from the United States at a port of entry in Alberta. They are also facing allegations of inadmissibility pursuant to paragraph 37(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for engaging in transnational crime.
[2] In the course of their admissibility proceedings, the applicants filed separate motions seeking to adjourn their hearing before the Immigration Division (ID) until the criminal charges against them were finally determined.
[3] On August 29, 2019, the ID denied their request for an adjournment and issued written reasons on September 3, 2019. The applicants seek judicial review of that decision.
[4] While articulated differently, the applicants submit that the ID’s decision is unreasonable because it violates their right to a fair hearing and their right against self-incrimination under sections 7 and 13 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter). They argue that the ID’s refusal to adjourn its proceedings places them in an untenable and unfair position of choosing between testifying voluntarily at the ID hearing, thereby revealing their criminal defence to the Crown and their co-accused (for the male applicant, his wife and for the female applicant, her husband), as well as waiving the Charter protection of derivative use immunity, or remaining silent at their admissibility hearing and thereby, not addressing the allegations made against them. In addition, they contend that the ID failed to apply subsection 43(2) of the Immigration Division Rules, SOR/2002-229 (ID Rules) and unreasonably faulted them for not disclosing the evidence that they fear would not be protected in the criminal proceedings.
[5] In response, the respondent submits that the Court should dismiss the applications for judicial review because they are premature given the interlocutory nature of the ID’s decision. In the event the Court is prepared to entertain the applications, the respondent submits that the ID reasonably concluded that an adjournment was not warranted since the request was based on speculation and issues outside the procedural purview of the ID.
II. Analysis
A. Prematurity
[6] It is settled case law that absent exceptional circumstances, the courts will not interfere with interlocutory decisions until the ongoing administrative processes have been completed and until all other available effective remedies have been exhausted. This rule has been described in a number of ways, including the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews (C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332 (C.B. Powell), at paragraphs 30–32). The underlying purpose of this rule is to prevent fragmentation of the administrative process and to reduce the large costs and delays associated with premature court challenges, particularly where the party may ultimately be successful at the conclusion of the administrative process (C.B. Powell, at paragraph 32).
[7] It is also well-established that very few circumstances qualify as exceptional and that the threshold for exceptionality is high (C.B. Powell, at paragraph 33). The presence of an important jurisdictional or constitutional issue, or concerns about procedural fairness, do not constitute exceptional circumstances (C.B. Powell, at paragraphs 33, 39–40 and 45).
[8] These principles were reiterated by the Supreme Court of Canada in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at paragraphs 35 to 38 and in several subsequent decisions of both the Federal Court of Appeal and this Court (Constantinescu v. Canada (Attorney General), 2019 FCA 315, at paragraph 2; Agnaou v. Canada (Attorney General), 2019 FCA 264, at paragraphs 2–3; Alexion Pharmaceuticals Inc. v. Canada (Attorney General), 2017 FCA 241, 154 C.P.R. (4th) 165, at paragraphs 47–50, and 53; Forner v. Professional Institute of the Public Service of Canada, 2016 FCA 35, 481 N.R. 159, at paragraphs 13–16; Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 F.C.R. 467, at paragraphs 28–34; Whalen v. Fort McMurray No. 468 First Nation, 2019 FC 732, [2019] 4 F.C.R. 217, at paragraphs 16–18; Wang v. Canada (Public Safety and Emergency Preparedness), 2017 FC 690 (Wang), at paragraphs 12–13 and 16; Girouard v. Inquiry Committee Constituted Under the Procedures for Dealing With Complaints Made to the Canadian Judicial Council About Federally Appointed Judges, 2014 FC 1175, at paragraphs 18–19; Douglas v. Canada (Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911, at paragraph 128).
[9] While I recognize the narrowness of the “exceptional circumstances” exception and that concerns of procedural fairness do not usually meet the requisite threshold, I find that this is one of those rare situations where the Court should exercise its discretion to intervene before a final decision has been rendered.
[10] The right against self-incrimination is one of the fundamental principles of criminal law (R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry), at paragraph 2; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248 (Application s. 83.28), at paragraph 70). It is constitutionally entrenched by paragraph 11(c) and section 13 of the Charter and it enjoys residual protection under sections 7 and 24 of the Charter. It is also protected by section 5 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (CEA).
[11] Some of the procedural safeguards against testimonial self-incrimination that have emerged in the jurisprudence include use immunity and derivative use immunity. Use immunity, under section 5 of the CEA and section 13 of the Charter, serves to protect the individual from having compelled incriminating testimony used directly against him or her in a subsequent proceeding (Application s. 83.28, at paragraph 71).
[12] Section 5 of the CEA reads:
Incriminating questions
5 (1) No witness shall be excused from answering any question on the ground that the answer to the question may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person.
Answer not admissible against witness
(2) Where with respect to any question a witness objects to answer on the ground that his answer may tend to criminate him, or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person, and if but for this Act, or the Act of any provincial legislature, the witness would therefore have been excused from answering the question, then although the witness is by reason of this Act or the provincial Act compelled to answer, the answer so given shall not be used or admissible in evidence against him in any criminal trial or other criminal proceeding against him thereafter taking place, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence.
[13] Section 13 of the Charter states:
Self-crimination
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
[14] Derivative use immunity is available under the residual protection of section 7 of the Charter and “insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means” (Application s. 83.28, at paragraph 71). Derivative evidence has been defined as evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the witness’s testimony (R. v. S. (R.J.), [1995] 1 S.C.R. 451, at page 454, (1995), 121 D.L.R. (4th) 589).
[15] The applicants submit that while they may enjoy the protection of use immunity under the CEA and section 13 of the Charter, in order for them to receive the benefit of derivative use immunity, they must be compelled to testify before the ID. If the Minister considers he can establish his case without the benefit of the applicants’ testimony and does not compel them to testify, they will be placed in an impossible situation. If they choose to testify in order to exonerate themselves through their testimony, they will lose the benefit of derivative use immunity. If they choose not to testify, they risk being found inadmissible pursuant to paragraph 37(1)(b) of the IRPA. Moreover, as they are both involved in the immigration and criminal proceedings, if the husband chooses to testify, the waiver of derivative use immunity would also mean that any evidence he gives could be used against his wife in the criminal trial and the same is true if the wife chooses to testify. The applicants argue that forcing them to reveal their legal defence to the criminal charges to the Crown and the other co-accused spouse would compromise their right to a fair trial.
[16] The applicants further argue that the evidence gathered as a result of a witness’s testimony—derivative evidence—is not guaranteed to be excluded from a subsequent criminal proceeding and is left to the discretion of the trial judge. The burden is on the accused to demonstrate that the proposed evidence is derivative evidence deserving of immunity protection. The exclusion of derivative evidence can only arise when a witness is compelled to testify, not when he or she chooses to testify.
[17] Relying on the decisions of the Supreme Court of Canada in Henry and R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311 (Nedelcu), the respondent argues that evidence given, even voluntarily in a proceeding where a witness was compellable, though not actually compelled, is protected by the Charter against self-incrimination. The test is whether the applicants can be compelled and whether they feel compelled to testify. There is no dispute that the applicants can be compelled to testify before the ID and that they feel they must testify to have any chance of not being found inadmissible. In the respondent’s view, the test is satisfied and the applicants’ testimony would be protected, as would their evidence against the other spouse under section 13 of the Charter. The respondent submits that the fact that the applicants do not trust the criminal court to enforce their Charter protected rights is not sufficient to delay the ID hearing indefinitely. In any event, the ID is not responsible for the procedural protections afforded by the law in criminal prosecutions. It must only concern itself with respect to the procedural fairness rights of the applicants in their admissibility hearing. Any argument regarding breaches of the Charter should be made in the criminal trial.
[18] After reviewing the jurisprudence on the procedural safeguards against testimonial self-incrimination, and in particular, the Henry and Nedelcu decisions, I am not persuaded by the respondent’s argument that the applicants’ voluntary testimony at their admissibility hearing would constitute “compelled” testimony for the purpose of claiming derivative use immunity at their criminal trial.
[19] In Henry, the appellants, who had testified in their first trial, had told a different story under oath in their retrial on the same charge of first-degree murder. At the retrial, they were cross-examined on their prior inconsistent statements and were again convicted of first-degree murder. They appealed on the basis that the use of their prior statements violated their constitutional right against self-incrimination guaranteed by section 13 of the Charter.
[20] In his reasons, Binnie J. noted that section 13 of the Charter embodies a quid pro quo: when a witness who is compelled to give evidence in a court proceeding is exposed to the risk of self-incrimination, the state offers protection against the subsequent use of that evidence against the witness in exchange for his or her full and frank testimony (Henry, at paragraph 22, quoting from R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433, at paragraph 21). He found that accused persons who testify at their first trial and then volunteer inconsistent testimony at the retrial on the same charge were in no need of protection from being indirectly compelled to incriminate themselves and section 13 protection should not be available to them (Henry, at paragraphs 43 and 47). The source of the quid pro quo was missing (Henry, at paragraph 42). He concluded that the appellants’ section 13 Charter rights were not violated by the Crown’s cross-examination.
[21] In Nedelcu, the issue was whether the Crown could cross-examine the respondent at his criminal trial on statements he had made during discovery in a civil action without infringing his rights against self-incrimination. The Crown contended that the decision in Henry should not apply, because the accused’s civil discovery evidence was not “compelled” within the meaning of Henry.
[22] The Court held that the respondent was “statutorily compellable, and therefore ‘compelled’” to give evidence by virtue of subsection 31.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which compels a defendant in a civil action to be examined for discovery whether or not the defendant files a statement of defence (Nedelcu, at paragraphs 1 and 109).
[23] Neither case mentions derivative use immunity nor is it unequivocal that Nedelcu intended to equate “compellable” with “compelled” in all circumstances.
[24] The circumstances here are also distinguishable from those in Wang, where I dismissed the application for judicial review because of prematurity. In that case, the applicant had sought judicial review of the Immigration Appeal Division (IAD)’s interlocutory order compelling him to testify. The ID had previously found the applicant not inadmissible to Canada under paragraphs 34(1)(a) and 34(1)(f) of the IRPA. The Minister appealed the ID’s decision to the IAD and sought to call the applicant as a witness. The applicant declined to testify but was ordered by summons to testify. The applicant contended that compelling him to testify engaged his right to liberty under section 7 of the Charter and that if he was compelled to testify for the purpose of testing his credibility before the IAD, the damage would be done and could not be corrected afterwards.
[25] In my reasons, I noted that it was not “a case in which once the evidence is disclosed, it cannot be taken back” (Wang, at paragraph 19). The applicant had testified over a period of two days before the ID during which he had communicated extensive details of his life and spoken to his alleged involvement with foreign intelligence and security agencies. I was not persuaded that any potential damage that could result from him testifying before the IAD would be such that it would be so fundamentally unfair not to decide the issue of his compellability at that stage of the IAD’s proceedings (Wang, at paragraphs 19–20).
[26] Unlike in Wang, the applicants here have not previously testified and they have not been compelled to testify. If their testimony before the ID gives rise to incriminating derivative evidence that does not attract immunity at the criminal trials, judicial review at the end of the proceedings will not provide an effective remedy as the testimony will have already been given. This is so regardless of the outcome in the admissibility proceedings. The applicants would be denied the very remedy they seek, namely the right not to disclose that evidence to the Crown or the co-accused.
[27] I note that in Seth v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 348, (1993), 105 D.L.R. (4th) 365 (C.A.), upon which the ID relied, the Federal Court of Appeal mentioned in footnote No. 13 that it was disposed, for the sake of argument and without reaching a final conclusion on the point, to recognize that a Convention refugee claimant could be equated with a “compellable witness”. It noted that although not bound to testify personally at the hearing, the refugee claimant could not be successful in his claim unless he met his burden and tendered sworn documentary evidence in support of his claim respecting his personal history.
[28] This reasoning does not necessarily apply here. In order to obtain a deportation order against the applicants, the Minister must first establish the elements of inadmissibility under paragraph 37(1)(b) of the IRPA (B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at paragraph 72; Handasamy v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1389, 48 Imm. L.R. (4th) 268, at paragraph 40). If the Minister were to adduce insufficient evidence to that effect, the applicants could choose to remain silent.
[29] Given the uncertainty in the case law regarding the application of derivative use immunity to the applicants if they testify voluntarily at their admissibility hearing and my finding that judicial review at the end of the proceedings could fail to provide an effective remedy, I am satisfied that the threshold for early intervention is met.
B. The ID’s refusal to adjourn the admissibility proceedings
[30] Citing Bruzzese v. Canada (Public Safety and Emergency Preparedness), 2016 FC 1119, [2017] 3 F.C.R. 272 and Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, (1995), 99 C.C.C. (3d) 193, the ID noted that there was no dispute that the applicants are compellable witnesses at their admissibility hearing. If the applicants were compelled to give testimony at their admissibility hearing, the compelled testimony would be protected pursuant to section 13 of the Charter. They could also request that the criminal trial judge exclude any derivative evidence. Though the ID recognized the applicants’ concern that they might have to testify voluntarily at their admissibility hearing to avoid being found inadmissible, it found that the applicants had not provided any idea of the type of evidence they might have to give in order to avoid being found inadmissible or how giving this evidence could help the Crown at the criminal trial.
[31] In addition, pointing to the decision of this Court in Akinsuyi v. Canada (Citizenship and Immigration), 2015 FC 1397, the ID confirmed that it had no role in ensuring the fairness of the criminal prosecution. It found that it was for the criminal trial judge to determine the appropriate remedy for the breach of any Charter rights caused by the admissibility hearing. As the potential use of any derivative evidence was highly speculative and conjectural, the ID concluded that it was not a sufficient ground for adjourning the admissibility hearing. Instead, the ID suggested that the applicants request that their admissibility hearing be conducted in private and that the presiding member prohibit the Minister from communicating to the Royal Canadian Mounted Police or to any other person the transcript of the proceedings or any content thereof at any time while the charges against the applicants were outstanding in the courts.
[32] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, 441 D.L.R. (4th) 1 (Vavilov), the Supreme Court of Canada held that reasonableness is the presumptive standard of review for administrative decisions (Vavilov, at paragraphs 10 and 16–17). None of the exceptions described in Vavilov apply here.
[33] Where the standard of reasonableness applies, the Court shall examine “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” (Vavilov, at paragraph 83). It must ask itself “whether the decision bears the hallmarks of reasonableness—justification, transparency and intelligibility—and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at paragraph 99). The burden is on the party challenging the decision to show that it is unreasonable (Vavilov, at paragraph 100).
[34] With respect to the issue of procedural fairness, the Federal Court of Appeal clarified in Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 (Canadian Pacific) that issues of procedural fairness do not necessarily lend themselves to a standard of review analysis. Rather, the role of this Court is to determine whether the proceedings were fair in all the circumstances. In other words, “whether the applicant knew the case to meet and had a full and fair chance to respond” (Canadian Pacific, at paragraphs 54–56; Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 F.C.R. 271, at paragraph 35).
[35] As noted earlier, the applicants challenge the ID’s decision on a number of grounds. They contend that it was unreasonable and unfair to place them in a position that compromises their section 7 and 13 Charter rights to a fair hearing and their right against self-incrimination. Even if it is up to the criminal court judge to determine the appropriate remedy for the breach of any Charter right caused by the admissibility hearing, the ID has the duty to be fair and avoid breaches of the Charter.
[36] The applicants also contend that the ID erred in failing to apply the criteria set out in subsection 43(2) of the ID Rules. This provision sets out the factors that the ID is required to consider and balance when assessing whether a motion for an adjournment of proceedings is warranted. These factors include the nature and the complexity of the hearing and whether allowing the application would unreasonably delay the proceedings or likely cause an injustice. In the applicants’ view, the only factor considered by the ID in refusing the adjournment was whether allowing the applications would unreasonably delay the proceedings.
[37] Finally, they argue that the ID imposed an unreasonable burden upon them. In order to prove that they would be prejudiced in providing evidence or revealing their criminal defence to the co-accused and the Crown at the ID hearing, they were required to provide the very evidence or reveal the criminal defence they wished to protect.
[38] Let me begin by addressing the applicants’ argument that the ID erred by not considering the factors listed in subsection 43(2) of the ID Rules. I note that this provision governs “application[s] to change the date or time of a hearing”. When the applicants made their request for an adjournment, the hearing date and time were not set. Their request was made in the context of scheduling the date for the hearing. There was no hearing date to change.
[39] Even if the ID was required to consider the factors set out in subsection 43(2) of the ID Rules, the ID cannot be faulted for not specifically addressing the factors that the applicants did not themselves rely on to request the adjournment. The thrust of the applicants’ argument was that failing to postpone the admissibility hearing until the final disposition of the criminal proceedings would potentially prejudice the criminal and immigration proceedings. The ID addressed this argument in its reasons.
[40] Moreover, since there is no absolute protection against self-incrimination, it was incumbent on the applicants to demonstrate that the continuation of the admissibility proceedings would prejudicially affect their right to a fair hearing and their right against self-incrimination.
[41] In the case before me, the applicants did not articulate before the ID the nature of the evidence they may have to give in order to avoid being found inadmissible, nor did they explain how that evidence could assist the Crown in the criminal proceedings. Not all derivative evidence is necessarily incriminating. In addition, the applicants’ admissibility hearing was not scheduled when the applicants brought their motions nor had the Minister completed disclosure of the evidence upon which he intended to rely in the admissibility proceedings. It is my understanding that the evidentiary disclosure in the criminal proceedings was also incomplete. While the applicants contend that there is no indication that the Minister will compel them to testify, there is also no indication that he will not. In my view, it was reasonable for the ID to find that the potential use of any derivative evidence was at that point highly speculative and conjectural. The applicants’ request was based on a set of circumstances that were both undefined and speculative. Vague allegations are not enough.
[42] As I agree with the ID that the applicants’ request was based on speculation, it is not necessary for me to determine at this time whether the applicants’ voluntary testimony would attract the protection of derivative use immunity.
[43] Furthermore, the ID reasonably suggested that the applicants request other protective measures that could address their concerns and allow the admissibility hearings to proceed in a timely manner. Subparagraph 166(b)(ii) of the IRPA provides that any division of the Immigration and Refugee Board can, on application or on its own motion, take any measures it considers necessary to ensure the confidentiality of the proceedings if, after considering available alternative measures, it is satisfied that there is a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public. This provision appears, at first glance, to be sufficiently broad to allow the ID to order that the admissibility proceedings, or parts thereof, be conducted in private and to restrict the use to be made of evidence given by the applicants.
[44] In addition, pursuant to subsection 44(2) of the ID Rules, the applicants can request that their hearings be separated, thereby eliminating the issue of one co-accused having to divulge their defence or strategy to the other. The applicants have not demonstrated that such procedural mechanisms would not address their concerns of fairness and confidentiality regarding the potential use of derivative evidence that could result from their testimony if they chose to testify.
[45] To conclude, the applicants have failed to persuade me that in refusing their request for an adjournment of the admissibility hearing, the ID unreasonably placed them in a position that compromises their section 7 and 13 Charter rights to a fair hearing and their right against self-incrimination or breached their rights to procedural fairness or natural justice.
[46] Accordingly, the applications for judicial review are dismissed.
[47] The applicants have requested that the Court certify the following question:
Would the conduct of an admissibility hearing of a person concerned under the Immigration and Refugee Protection Act before the final determination of criminal charges against the person for an act relevant to the admissibility proceedings violate the rights of the person under the Canadian Charter of Rights and Freedoms because of the loss of derivative use immunity in criminal proceedings when the person is not compelled to testify at their admissibility hearing but testifies voluntarily?
[48] The criteria for certification are well established. The proposed question must be a serious question that is dispositive of the appeal. It must transcend the interests of the parties and raise an issue of broad significance or general importance. Furthermore, the question must have been dealt with by the Federal Court and must arise from the case itself rather than from the way in which the Federal Court may have disposed of the case. A question in the nature of a reference or whose answer turns on the unique facts of the case cannot ground a properly certified question (Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674 (Lunyamila), at paragraphs 46–47; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229, at paragraph 36; Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199, at paragraphs 15–17; Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211, at paragraph 4; Zhang v. Canada (Citizenship and Immigration), 2013 FCA 168, [2014] 4 F.C.R. 290, at paragraph 9; Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, at paragraphs 28–29; Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89, 36 Imm. L.R. (3d) 167, at paragraphs 11–12; Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL) (C.A.), at paragraph 4).
[49] The answer to the question proposed by the applicants is dependant on the determination that a person who testifies voluntarily at his or her admissibility hearing may not claim derivative use immunity at a later criminal proceeding. Given that I have decided the applications for judicial review on a different basis and have not pronounced myself on this issue, it would be inappropriate to certify the question (Lunyamila, at paragraphs 3 and 46).
[50] Accordingly, no question will be certified.
JUDGMENT in IMM-5410-19 and IMM-5510-19
THIS COURT’S JUDGMENT is that:
1. The applications for judicial review are dismissed;
2. No question of general importance is certified.
3. A copy of this judgment and reasons will be placed on both Court files (IMM-5410-19 and IMM-5510-19).