Suresh v. Canada
DES-3-95
Cullen J.
4/1/96
8 pp.
Application for ruling judge designated to review certificate issued pursuant to Immigration Act, s. 40.1 having jurisdiction to grant remedies pursuant to Charter, s. 24(1), Constitution Act, 1982, s. 52(1)-S. 40.1(4)(d) stating designated judge shall determine whether certificate filed by Minister reasonable and if not reasonable quash certificate-Designated judge in review of certificate not having jurisdiction to consider arguments, grant remedies pursuant to Charter, s. 24, Constitution Act, 1982, c. 52-To be "court of competent jurisdiction" for purpose of granting Charter remedy under s. 24, court must have jurisdiction over parties, subject-matter, remedy sought: Mills v. The Queen, [1986] 1 S.C.R. 863-Reasonable to consider constitutional issues raised under s. 52(1) similarly to issues raised under s. 24(1)-Provided has jurisdiction over whole of matter, i.e. parties, subject-matter, remedy, designated judge having jurisdiction to consider constitutional issues, grant constitutional remedies-As designated Federal Court judge having jurisdiction over parties, subject-matter, only issue whether designated judge in s. 40.1 hearing having jurisdiction to grant remedy sought-Designated judge must determine whether Ministers' decision to issue certificate reasonable-Assessment of reasonableness, pursuant to s. 40.1(4)(d) not including assessment of whether upholding certificate would breach applicant's constitutional rights- Reasonableness, constitutionality distinct issues-S. 40.1(4)(d) giving designated judge jurisdiction only to consider reasonableness of certificate-S. 40.1(6) providing determination under s. 40.1(4)(d) not subject to appeal-By expressly prohibiting further appeal, Parliament reinforcing notion proceedings under s. 40.1 intended only to consider whether Minister's decision to issue certificate reasonable on basis of available evidence-Applicant submitting s. 40.1(6) only preventing appeal of determination of reasonableness, not appeals on constitutional issues-If designated judge lacking jurisdiction to hear Charter arguments, lack of appeal irrelevant-Lack of appeal premised on assumption designated judge not having such jurisdiction-Further indication Parliament intended designated judge only consider whether certificate reasonable on basis of available evidence-Questions of Charter infringement demanding much higher standard of proof, incompatible with mere assessment of reasonableness-Immigration Act, R.S.C., 1985, c. I-2, s. 40.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 29, s. 4)-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], s. 24-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.