Last updated on June 13th, 2019
The subject unreasonable delays often arise 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. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question:
Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board have the jurisdiction to grant a permanent stay of proceedings based on an abuse of process on the basis of a delay which is alleged to have occurred following the signing of the s. 44(1) report and/or s. 44(2) referral?
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 in the Immigration Context
Beltran v. Canada (Citizenship and Immigration) 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. Beltran. 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 Hassouna v. Canada (Citizenship and Immigration) 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 caused by a 700% increase in citizenship revocation proceedings resulted in a delay not being an abuse of process.
Unreasonable Delay at the Immigration Division
Torre v Canada ( Citizenship and Immigration) is the leading case on bringing unreasonable delay claims at the Immigration and Refugee Board. There, a permanent resident in Canada was 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 because it could only consider the period between the preparation of the inadmissibility report and the Immigration Division hearing. Upon judicial review, the Federal Court affirmed that the Immigration Division has little discretion to determine whether there was an abuse of process beyond the proceedings immediately before it.
This principle has been upheld in numerous cases. In Kazzi v Canada (Citizenship and Immigration), Justice Gascon wrote:
I note that it is not the Immigration Division’s role to determine if the process leading to the inadmissibility report was procedurally unfair, as the only question for the ID is whether the person is inadmissible, and the ID has “no other option than to make a removal order against the foreign national or the permanent resident i[f] he or she is inadmissible” […]
In Sharma v Canada (Public Safety and Emergency Preparedness), the Federal Court of Appeal stated that:
Considering that, once referred, the options of the Immigration Division appear to be very limited since it “shall make” a removal order if satisfied that the foreign national or the permanent resident is inadmissible, it would appear that the only discretion (albeit very limited) to prevent a foreign national or permanent resident from being removed rests with the immigration officer and the Minister or his delegate [during the preparation and/or referral of the s. 44 report] [emphasis added].
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.