Justice Zinn agreed that the constitutionality of subsection 112(2)(b.1) of Immigration and Refugee Protection Act, SC 2001, c 27 is a live issue on the facts of this case. In particular, he emphasized that this case involves risk of harm to a minor and applicants being removed from Canada “without any risk assessment whatsoever” (para 8-9). He stated, “Although that situation will never again arise for these Applicants, it may well arise for others.”
Justice Zinn outlined the criteria set out by the Supreme Court in Borowski v. Canada (Attorney General), [1989] 1 SCR 342 to decide whether to hear a matter that is moot, namely: (1) the presence of an adversarial context; (2) concern for judicial economy; and, (3) the need for the Court to be sensitive to its role as the adjudicative branch in the political network.
With respect to the presence of an adversarial context, Justice Zinn noted that the Canadian Association of Refugee Lawyers (CARL) has now brought forth a motion to be added as a party to the application or, in the alternative, to be granted leave to intervene. If CARL’s motion is granted, “the adversarial context will be present regardless of the interests of the personal Applicants” (para 12).
With respect to judicial economy, Justice Zinn stated, “Although judicial economy is served by refusing to permit this moot matter to be heard, it may be a false economy because it is very likely that the present situation will come back before the Court only with different litigants” (para 13).
Finally with respect to the role of the courts, Justice Zinn stated, “In this case, determining the issue of the constitutionality of paragraph 112(2)(b.1) is exactly the role of the Court. Its determination does not intrude into the role of Parliament any more than the current applications before this Court” (para 14).
As such, his Honour dismissed the Respondent’s Motion for Judgment and declared that “notwithstanding mootness, this application shall be heard on the issue of the constitutionality of paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act, SC 2001, on the facts of the present application”.
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Arghavan Gerami
Arghavan Gerami is the Founder and Senior Counsel at Gerami Law Professional Corporation ('PC'), a full-service immigration law firm in Ottawa, Ontario. Since 2011, Ms. Gerami has focused her practice on immigration and refugee litigation. Prior to that, Ms. Gerami worked at the Ministry of Attorney General and the Department of Justice and had the privilege of serving the Honourable Mr. Justice M. Evans at the Federal Court of Appeal on immigration and administrative law appeals. Ms. Gerami contributes to the Immigration Law Section of the Canadian Bar Association, the Canadian Association of Refugee Lawyers, and the United Nations High Commissioner for Refugees. Ms. Gerami has also published numerous journal articles and presented at various immigration and refugee law conferences and events across Canada.