Suresh v. Canada, (1996) 105 F.T.R. 299 (TD)

• Judge: Cullen, J.
• Court: Federal Court (Canada)
• Case Date: December 22, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1996), 105 F.T.R. 299 (TD)

Suresh v. Can. (1996), 105 F.T.R. 299 (TD)

MLB headnote and full text

In The Matter Of a certificate issued pursuant to Section 40.1 of the Immigration Act, S.C. 1976-77, c. 52, as amended;

And In The Matter Of Sections 19(1)(e), 19(1)(f), 40.1 and specific provisions thereof and section 117 of the Immigration Act, 1976-77, as amended;

And In The Matter Of the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms (being part 1 of the Constitution Act, 1982);

And In The Matter Of the Canadian Bill of Rights, S.C. 1970, App. III, c. 44, as amended

Manickavasagam Suresh (applicant) v. Her Majesty the Queen (respondent)

(DES-3-95)

Indexed As: Suresh v. Canada

Federal Court of Canada

Trial Division

Cullen, J.

January 4, 1996.

Summary:

The Minister of Citizenship and Immigration and the Solicitor General of Canada filed a certificate under s. 40.1 of the Immigration Act respecting Suresh. The Minister caused a copy of the certificate to be referred to the Federal Court for a determination as to whether the certificate should be quashed. Suresh applied to determine whether the designated judge had jurisdiction to consider arguments and grant remedies under s. 24(1) of the Charter and s. 52(1) of the Constitution Act.

The Federal Court of Canada, Trial Division, dismissed the application, concluding that the designated judge lacked jurisdiction to consider constitutional issues and grant constitutional remedies.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Minister of Citizenship and Immigration and the Solicitor General of Canada filed a certificate under s. 40.1 of the Immigration Act respecting Suresh - The Minister caused a copy to be referred to the Federal Court for a determination as to whether the issuance of the certificate was reasonable (s. 40.1(4)(d)) - Suresh applied to determine whether the designated judge had jurisdiction to consider arguments and grant remedies under s. 24(1) of the Charter and s. 52(1) of the Constitution Act - The Federal Court of Canada, Trial Division, held that the clear language of s. 40.1 of the Immigration Act was incompatible with extensive Charter review and the assessment of reasonableness did not include an assessment of constitutional rights and remedies.

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - [See Aliens - Topic 1561 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - The Federal Court of Canada, Trial Division, stated that "... it is reasonable to consider constitutional issues raised under s. 52(1) [of the Constitution Act, 1982] similarly to issues raised under s. 24(1) [of the Charter]. Provided that the designated judge has jurisdiction over the whole of the matter before him or her -- the parties, the subject matter, and the remedy sought -- he or she has jurisdiction to consider constitutional issues and grant constitutional remedies." - See paragraph 5.

Constitutional Law - Topic 21

General - Raising constitutional issues - General - [See Aliens - Topic 1561 and second Civil Rights - Topic 8363 ].

Cases Noticed:

Al Yamani v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 105 (T.D.), consd. [para. 3].

Shandi, Re (1992), 51 F.T.R. 252; 17 Imm. L.R.(2d) 54 (T.D.), consd. [para. 4].

Baroud, Re (1995), 98 F.T.R. 99 (T.D.), consd. [para. 4].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 29 D.L.R.(4th) 161; 26 C.C.C.(3d) 481, consd. [para. 5].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340; 2 C.R.R.(2d) 157, consd. [para. 5].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271; 4 C.R.R.(2d) 1, consd. [para. 5].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358, consd. [para. 5].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289, consd. [para. 10].

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241; 94 C.C.C.(3d) 385, consd. [para. 10].

R. v. Laba - see R. v. Johnson et al.

R. v. Keegstra (J.) (1995), 180 N.R. 120; 169 A.R. 50; 97 W.A.C. 50 (S.C.C.), consd. [para. 10].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 14].

Constitution Act, 1982, sect. 52(1) [para. 14].

Immigration Act, R.S.C. 1985, c. I-2, sect. 40.1 [paras. 9, 14]; sect. 40.1(4) [para. 6]; sect. 40.1(4)(d) [paras. 7, 8]; sect. 40.1(6) [paras. 9, 10, 12].

Counsel:

Clayton C. Ruby, for the applicant;

Donald MacIntosh and Norman Vaillancourt, for the respondent.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario, for the applicant;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on December 22, 1995, before Cullen, J., of the Federal Court of Canada, Trial Division, who delivered the following reasons for order on January 4, 1996.