The subject of an unreasonable delay often arises in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was.
As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process.
Blencoe v. British Columbia
The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44 .
In Blencoe, three women filed complaints of sexual harassment to the British Columbia Human Rights Council. Due to delays the tribunal hearings were not resolved for 30 months after the first filing. The accused challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected, and also found that the Charter was not engaged. Importantly, the Supreme Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice to the individual as a result of the delay.
The following principles emerged from Blencoe:
- The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
- Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
- Delay, without more, will not warrant a stay of proceedings as an abuse of process.
- Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
- Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
- The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
- If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
- Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.
In R. v. Babos, 2014 SCC 16, the Supreme Court of Canada articulated a three-part test for determining when an abuse of process should result in a stay of proceedings. The Supreme Court stated:
(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);
(2) There must be no alternative remedy capable of redressing the prejudice; and
(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits” (ibid., at para. 57).
Unreasonable Delays Immigration Context
Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context. There, the Canadian Security Intelligence Services determined that an individual was not a threat to Canada’s national interest. Fourteen years later, without any explanation, and without any explanation, a new security officer expressed concerns, causing further delays in inadmissibility proceedings being commenced. The court also found that a new investigation caused undue prejudice to Mr. Blencoe. The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.
In Torre v Canada ( Citizenship and Immigration), 2015 FC 591, the applicant was a permanent resident in Canada, arrested for drug trafficking in 1996. Seventeen years later, in 2013, two inadmissibility reports were prepared and referred to the Immigration Division for an admissibility hearing, which could lead to his removal. The Immigration Division refused to hear the applicant’s motion for a stay of proceedings for unreasonable delay, holding that it lacked jurisdiction to do so.
Upon judicial review, the Federal Court found that the Immigration Division has little discretion to determine whether there was an abuse of process because the Immigration and Refugee Protection Act and jurisprudence provide that the Immigration Division hold an admissibility hearing quickly, and if it finds the person inadmissible, it must make a removal order.
In Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473 the Federal Court determined that when applying Blencoe to citizenship revocation courts should consider (1) the time taken compared to inherent time requirements, (2) the causes of the delay beyond the inherent time requirements of a matter, and (3) the impact of the delay, including prejudice and other harms. There, the strain on resources that a 700% increase in citizenship revocation proceedings caused resulted in a delay not being an abuse of process.
S. 11(b) of the Charter
Section 11 of the Canadian Charter of Rights and Freedoms provides that any person charged with an offence has the right to be tried within a reasonable time. The Federal Court has ruled, however, that this does not apply to immigration proceedings, and in Montoya v. Canada even ruled that it does not apply to citizenship revocation.