[1996] 2 F.C. 872
A-39-96
Thalayasingam Sivakumar (Appellant)
v.
Her Majesty the Queen, The Minister of Citizenship and Immigration, The Solicitor General of Canada and The Canadian Security Intelligence Service (Respondents)
Indexed as: Sivakumar v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Stone and Robertson JJ.A. and Gray D.J.—Toronto, May 24, 1996.
Administrative law — Judicial review — Injunctions — Appeal from dismissal of application for interlocutory injunction pending disposition of action for declaration Charter rights infringed by deportation to Sri Lanka — Appellant denied Convention refugee status in belief involved in crimes against humanity — Facing torture, possibly death, if returned to Sri Lanka — Whether removal to Sri Lanka engaging Charter, ss. 7, 12 “serious issue” to be tried — Irreparable harm, balance of convenience established — Risk of harm not compensable in damages outweighing fact public authority prevented from exercising statutory duty.
Constitutional law — Charter of Rights — Criminal process — Appeal from denial of interlocutory injunction enjoining Minister from executing deportation order until disposition of action for declaration Charter rights violated if returned to Sri Lanka — Appellant, found not to be Convention refugee, facing torture, possibly death in Sri Lanka — Alleging removal to Sri Lanka cruel and unusual punishment — Whether removal to Sri Lanka engaging Charter, ss. 7, 12 serious issue to be tried.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Appeal from denial of interlocutory injunction enjoining Minister from executing deportation order until disposition of action for declaration Charter rights violated if person excluded from refugee status for involvement in crimes against humanity returned to Sri Lanka — Appellant facing torture, possibly death in Sri Lanka — Whether removal to Sri Lanka engaging Charter, ss. 7, 12 serious issue to be tried — Irreparable harm to appellant outweighing fact public authority prevented from discharging statutory duty.
This was an appeal from the denial of an interlocutory injunction to restrain the Minister from executing a deportation order until after disposition of an action for a declaration that removal to Sri Lanka would violate the appellant’s Charter rights. The appellant’s Convention refugee claim was dismissed because there were sufficient reasons to believe that he had been involved in crimes against humanity perpetrated by the Liberation Tigers of Tamil Eelam (LTTE). When the Minister initiated steps to execute a deportation order, the appellant commenced an action for a declaration that his removal to Sri Lanka would violate his rights under Charter, sections 7 and 12, and the application for the interlocutory injunction, denial of which was the subject of this appeal. The Motions Judge held that the appellant had not satisfied the “serious issue” branch of the tripartite test for granting interlocutory injunctions. The appellant’s submission was that his removal to Sri Lanka would constitute cruel and unusual punishment because either the government of Sri Lanka would arrest, detain, try to extract information by torture and extrajudicially execute him, or the LTTE would kill him.
Held, the appeal should be allowed.
The appellant’s evidence of potential harm if he were returned to Sri Lanka was not disputed by the respondents.
This case raised for the first time the question of whether Charter, sections 7 and 12 rights would be violated by the execution of a deportation order to a particular country where, as here alleged and as the evidence suggested, the refugee claimant would face a serious risk of harm. This case did raise a serious issue to be tried: whether the removal of the appellant pursuant to the deportation order to Sri Lanka where he would face torture and possibly death engages the protections in Charter, sections 7 and 12.
The appellant also met the irreparable harm and balance of convenience branches of the tri-partite test. Removal to Sri Lanka would involve risk of harm to him not compensable in damages, and that outweighed the fact that a public authority would be prevented from exercising a statutory duty.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
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, 12.
Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) “Convention refugee” (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1F(a).
CASES JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.); Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123; 86 N.R. 302 (F.C.A.); Hadmor Productions Ltd. v. Hamilton, [1983] 1 A.C. 191 (H.L.); Searle Canada Inc. v. Novopharm Limited, [1994] 3 F.C. 603 (1994), 56 C.P.R. (2d) 213; 171 N.R. 48 (C.A.).
CONSIDERED:
Sivakumar v. Canada (Minister of Employment and Immigration) sub nom. K.(Y.P.) Re, [1991] C.R.D.D. No. 672 (QL); Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433 (1993), 163 N.R. 197 (C.A.); Sivakumar v. Minister of Employment and Immigration, [1994] 2 S.C.R. ix; Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696 (1993), 100 D.L.R. (4th) 151; 14 C.R.R. (2d) 146; 18 Imm. L.R. (2d) 165; 151 N.R. 69 (C.A.).
REFERRED TO:
RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; (1994), 54 C.P.R. (3d) 114; 164 N.R. 1; 60 Q.A.C. 241; Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (1992), 99 D.L.R. (4th) 264; 18 Imm. L.R. (2d) 81; 151 N.R. 28 (C.A.); Arica v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 670 (C.A.) (QL).
APPEAL from dismissal of motion for interlocutory injunction to restrain the Minister from executing a deportation order (Sivakumar v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 18 (T.D.) (QL)). Appeal allowed.
COUNSEL:
Lorne Waldman for appellant.
Alan S. Davis for respondents.
SOLICITORS:
Lorne Waldman, Toronto, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment of the Court delivered orally in English by
Stone J.A.: This is an appeal from an order of the Trial Division [[1996] F.C.J. No. 18 (T.D.) (QL)] dismissing the appellant’s motion for an interlocutory injunction to restrain the execution of a deportation order of January 26, 1989 until after the claims made in the action are disposed of on their merits.
In proceedings before the Refugee Division of the Immigration and Refugee Board [sub nom. K. (Y.P.) (Re), [1991] C.R.D.D. No. 672 (QL)] the appellant, a native of Sri Lanka and a former high-ranking member of the Liberation Tigers of Tamil Eelam (LTTE), was found not to be a “Convention refugee”. The Refugee Division found that the appellant had good reason for fearing persecution if returned to Sri Lanka but that he was excluded from consideration by virtue of Article 1F(a) of the International Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6]] because there were sufficient reasons to believe that he had been involved in crimes against humanity perpetrated by the LTTE. An appeal to this Court was dismissed on November 4, 1993 [[1994] 1 F.C. 433(C.A.)]. Leave to appeal to the Supreme Court of Canada from this Court’s judgment was dismissed on June 2, 1994 [[1994] 2 S.C.R. ix], with the result that the deportation order was rendered unconditional.
In due course, the Minister of Citizenship and Immigration initiated steps to execute the deportation order with a view to returning the appellant to Sri Lanka. Shortly afterward the appellant began an action in the Trial Division for declarations that his removal to Sri Lanka would violate his rights under sections 7 and 12 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]] and that the Government of Canada is estopped from removing him from Canada, and for a permanent injunction enjoining his removal to Sri Lanka. At the same time the appellant launched a motion “to enjoin the Defendant, The Minister of Citizenship and Immigration, from removing the Plaintiff from Canada until such time as the main action is disposed of”. The dismissal of that motion by the Trial Division on January 5, 1996 has led to the present appeal.
It is clear that that tri-partite test of American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), is applicable in determining whether the appellant should be granted an interlocutory injunction until the trial of the action. That test was described by Heald J.A. in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.), at pages 127-128, as follows:
This Court, as well as other appellate Courts have adopted the test for an interim injunction enunciated by the House of Lords in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, [1975] 1 All E.R. 504 (H.L.) (Compare: Apple Computer Inc. v. Minitronics of Canada (1985), 8 C.P.R. (3d) 431 (F.C.A.). See also: Law Society of Alta. v. Black (1983), 29 Alta. L.R. (2d) 326, [1984] 6 W.W.R. 755; 8 D.L.R. (4th) 346 at 349, 69 A.R. 322 (Alta. C.A.)). As stated by Kerans J.A. in the Black case supra:
“The tri-partite sequential test of Cyanamid requires, for the granting of such an order, that the applicant demonstrate, firstly, that he has raised a serious issue to be tried; secondly that he would suffer irreparable harm if no order was granted; and thirdly that the balance of convenience, considering the total situation of both parties, favours the order.”
See also RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.
The Motions Judge concluded that the appellant had not satisfied the “serious issue” branch of this test. In so doing he expressed the opinion that such an issue was not raised either on the basis that the Minister was estopped from executing the deportation order because of alleged promises made to the appellant by CSIS officials or that the execution of the order would infringe the appellant’s rights under sections 7 and 12 of the Charter.
This Court is asked to exercise an independent discretion on the basis that the Motions Judge erred in his application of the relevant law. That the Court possesses such a discretion in such a circumstance is clear from the leading case of Hadmor Productions Ltd. v. Hamilton, [1983] 1 A.C. 191 (H.L.), which was applied by this Court in Searle Canada Inc. v. Novopharm Limited, [1994] 3 F.C. 603
Sections 7 and 12 of the Charter read, respectively, as follows:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
…
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
The appellant alleges in his statement of claim that his removal back to Sri Lanka would be a violation of these sections “in that it would constitute cruel and unusual punishment”. He further alleges (paragraph 33) that he “fears that the government of Sri Lanka will arrest him, detain him and attempt to extract information from him under torture”, that he will be “extrajudicially executed by the authorities of Sri Lanka if they do apprehend him”, and that “given his past involvement with CSIS and … as a result of providing information to CSIS, the LTTE will kill him”.
The motion was supported by affidavit evidence in which the appellant detailed at length his past involvement as a member of the LTTE in which he apparently held senior positions of leadership and from which he was expelled in 1988 after a dispute with the leader of that organization. He further testified with respect to an approach made to him by CSIS and of his becoming a paid informer of that body sometime after his arrival in Canada. Among other things he testified that an LTTE operative visiting Canada from the United States had become aware of the appellant’s involvement with CSIS. According to his evidence CSIS officials promised on a number of occasions that the appellant would not be returned to Sri Lanka regardless of the outcome of his claim for refugee status. In the supporting evidence is the affidavit of Murugesapillai Duraiswamy of October 31, 1995, President of the Tamil Eelam Society of Canada and former visa officer for the Sri Lankan High Commission in India. After testifying to being “well aware of the current political situation in Sri Lanka”, this witness swore:
3. I am aware of the circumstances surrounding the case of the applicant herein and am particularly aware of the fact that he is known by the Sri Lankan Government to have been a high-ranking member of the Liberation Tigers of Tamil Eelam (LTTE).
4. Persons who are known to have been members of the Liberation Tigers of Tamil Eelam are at grave risk at the hands of the Sri Lankan authorities and they will be tortured and killed. Mr. Thalayasingam Sivakumar’s participation in the LTTE organization is well-known as is evidenced by the fact that a warrant for his arrest was issued once he left Sri Lanka. I attach as Exhibit “A” a copy of the arrest warrant.
5. The armed and deadly anti-LTTE groups such Eelam People’s Democratic Party (EPDP), People’s Liberation Organization of Tamil Eelam (PLOTE), Tamil Eelam Liberation Organization (TELO), Eelam People’s Revolutionary Liberation Front (EPRLF) who collaborate with any Sri Lankan Government that is in power will take revenge and kill Mr. Thalayasingam Sivakumar if he returns to Sri Lanka. The Sri Lankan Government will never afford protection to Mr. T. Sivakumar.
6. Since Mr. Thalayasingam Sivakumar was expelled from the Liberation Tigers of Tamil Eelam when he was in India, he has reasonable amount of fear of persecution from the LTTE. Mr. T. Sivakumar’s association with Canadian Security and Intelligence Service (CSIS) further increases his risk to his life.
7. If Mr Thalayasingam Sivakumar were to return to Sri Lanka, there is absolutely no doubt that he would be immediately detained as a result of the existence of the arrest warrant. Given that the Sri Lankan Government routinely engages in torture and in extra judicial assassination of political opponents and especially members of the Liberation Tigers of Tamil Eelam; it is certain that Mr. T. Sivakumar will be arrested, detained upon arrival in Sri Lanka. Undoubtedly, he would be subjected to severe forms of torture to extract whatever information he has that might be of use to the government in its war against the LTTE. After the extraction of all the useful information, he may well be subjected to extra-judicial killing or could be detained for an indefinite period without charge or trial under the Emergency Regulations and the Prevention of Terrorism Act. I attach as Exhibit “B” to this affidavit copies of documentary evidence which clearly establishes that the Sri Lankan Government has no respect for human rights, engages in torture, extra-judicial killings and makes use of arbitrary legislation to detain and torture persons for indefinite periods of time on mere suspicion.[1]
The record before us contains reports of Amnesty International on Sri Lanka. These paint a picture of human rights abuses in that country by both sides in the civil war still raging there. For example, one such report in 1994 stated:
This document provides an overview of Amnesty International’s concerns in Sri Lanka since the beginning of 1993.
During this period, thousands of people were arbitrarily arrested, including prisoners of conscience, and hundreds of political prisoners remained in detention for over two years without trial. Torture and ill-treatment in custody continued and over 25 “disappearances” were reported which have not yet been clarified. Extrajudicial killings were reported in both the northeast and the south, though at lower levels than in previous years. There were continuing reports of harassment and death threats issued to journalists in the south. The Liberation Tigers of Tamil Eelam failed to account for numerous prisoners in their custody, some of whom they reportedly executed.[2]
In a second report of February 1994 by the same organization, the following statement appears:
There is evidence that some Tamil detainees are beaten in custody, sometimes severely enough to constitute torture. Torture or ill-treatment is a routine method of forcing detainees to confess to involvement with the LTTE. In particular, Amnesty International has interviewed a number of Tamil detainees who were beaten by CDB officers during interrogation. Prisoners held in secret detention by the army or other groups suffer more severe forms of torture.[3]
It should be noted at this stage that none of the appellant’s evidence of potential harm to him if he were to be returned to Sri Lanka is disputed by the respondents. Nor, indeed, was there cross-examination on the affidavits filed by the appellant.
In deciding that there was no serious issue raised by the allegations of sections 7 and 12 Charter violations, the Motions Judge was of the view that the Charter did not impose on the Government of Canada [at page 10 of QL] “the duty to harbour in Canada aliens who are excluded” by the provisions of the International Convention and the “Convention refugee” definition in the Immigration Act [R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1)]. However, this case raises for the first time the question of whether sections 7 and 12 Charter rights would be violated by the execution of the deportation order to a particular country where, it is alleged and the evidence suggests, the appellant runs a serious risk of harm. In Nguyen v. Canada (Minister of Employment and Immigration), [1993] 1 F.C. 696(C.A.), Marceau J.A. stated in obiter at pages 708-709, that “the Minister would act in direct violation of the Charter if he purported to execute a deportation order by forcing the individual concerned back to a country where, on the evidence, torture and possibly death will be inflicted”. See also Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3(C.A.) and Arica v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 670 (C.A.) (QL). The core issue raised by the statement of claim is whether the view so expressed is valid. Such a question has yet to be squarely addressed by this Court. We are satisfied, therefore, that this case does raise a “serious issue” to be tried—that being whether the removal of the appellant to Sri Lanka pursuant to the deportation order would, in the circumstances described above, engage the protections in sections 7 and 12 of the Charter.
We are also satisfied that the appellant has met the irreparable harm and balance of convenience branches of the tri-partite test. On the basis of the material in the record it is apparent that the removal of the appellant to Sri Lanka under the circumstances described above would involve risk of harm to him not compensable in damages. We are not unmindful of the fact that this is a case in which it is sought to prevent a public authority from exercising a statutory duty by executing the deportation order. Such, indeed, was the situation in Toth, supra. In deciding there that the applicant for the stay of a deportation order had satisfied these branches of the test, Heald J.A. stated at pages 130-131:
On the basis of the evidence adduced before the Board as well as the material placed before us in support of the May 30 application, which, at this time, stands uncontradicted, I am of the view that the applicant has met the irreparable harm test. As noted supra, the evidence is to the effect that if the applicant is deported now, there is a reasonable likelihood that the family business will fail and that his immediate family as well as others who are dependent on the family business for their livelihood will suffer.
…
Keeping in mind that, in deciding the question of balance of convenience, the Court must give equal consideration to the interests of both parties and, in cases like this where the injunction is sought against a public authority exercising a statutory power, this circumstance must also be taken into consideration, I have concluded, nevertheless, that the applicant has made out a case for an interlocutory stay. In the applicant’s favour are the very serious consequences, both from a family and a financial point of view, which would ensue upon the execution of the deportation order. As against that is the circumstance mentioned supra, that a stay will interfere with the execution of a deportation order issued by a special inquiry officer pursuant to the duties and powers vested in him under the Immigration Act, 1952. There is also the additional factor referred to by respondent’s counsel which can be characterized as somewhat of a “floodgate” argument. Counsel was concerned about the precedential effect the granting of a stay in this case might have on the multitude of deportation orders being issued by the various adjudicators across Canada. My response to this submission is that the precedential value of a stay being granted in one case is minimal since such a stay is granted only after careful consideration of all the circumstances of that case. It is not to be considered as a precedent for the granting of a stay in other cases and in different circumstances.
In view of the foregoing conclusion it is not necessary to address the issue of estoppel.
The appeal will be allowed, the order of the Trial Division of January 5, 1996 will be set aside and an interlocutory injunction will be granted enjoining the respondent Minister from executing the deportation order until the disposition of the action in the Trial Division.