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CITATION: Mohammad v. The Attorney General of Canada, 2013 ONSC 2936 COURT FILE NO.

: CV-13-479694 DATE: 20130523 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Mahmoud Mohammad Issa Mohammad, Applicant AND: The Attorney General of Canada, The Ministry of Public Safety and Emergency Preparedness and The Minister of Citizenship and Immigration, Respondents BEFORE: McWatt J.
2013 ONSC 2936 (CanLII)

COUNSEL: Barbara Jackman and Marlys Edwardh, for the Applicant James Todd, for the Respondents HEARD: May 4, 2013 ENDORSEMENT [1] At what the applicant termed an “emergency motion”, I dismissed this application on Saturday, May 4, 2013. I promised further reasons, but told counsel that it would be inappropriate for the Superior Court to interfere with the removal of the applicant from Canada or to become involved in what was clearly an immigration matter. Here are the further reasons. The Facts [2] In 1968, Mr. Mohammad and another man perpetrated a terrorist attack with machine gun fire and hand grenades on an El-Al airliner in Athens on behalf of the Popular Front for the Liberation of Palestine. Mr. Mohammad killed one man and wounded another individual. He was arrested and then convicted in Greece of seven offences in 1970, including manslaughter. He was sentenced to 17 years and 5 months in jail, but was released in August of 1970 and pardoned as part of a deal reached by the Greek government to ensure the release of 52 hostages on an Olympic Airways plane subsequently hijacked by terrorists for the purpose of having Mr. Mohammad released from prison. [3] The applicant lived in Jordan, Cyprus and Spain prior to 1985. In 1987, he entered Canada as a permanent resident under what the Federal Court has determined were false pretences. In 1995, Mr. Mohammad’s refugee claim in Canada was rejected on the basis of his past criminal activities. In 1999, the applicant was determined to be inadmissible to Canada under the Immigration Act due to his criminal activities. He appealed that decision. The Immigration Appeal Division dismissed his appeal on November 1, 2001. His application for

- Page 2 judicial review of that dismissal was dismissed on April 14, 2003. A further appeal was denied on January 29, 2004 by the Federal Court of Appeal. [4] In 2007 a risk assessment to determine whether Mr. Mohammad could safely be deported determined that the applicant needed health care and that he would be targeted for killing as an act of retribution. [5] The Pre-Removal Assessment which was at the heart of the motion before me has determined that the applicant no longer faces risks from being deported. [6] Mr. Mohammad brought an application for leave and judicial review in Federal Court of the decision not to grant his Pre-Removal Risk Assessment Application. He then brought a motion to stay his removal from Canada to Lebanon on Friday, May 3, 2013. Madam Justice Anne L. Mactavish dismissed the stay application by the end of the day. [7] Immediately after that decision was rendered on Friday afternoon, the applicant’s counsel, Ms. B. Jackman, contacted the Superior Court for an emergency motion before me, the duty judge sitting May 4 and 5. Both Crown and Ms. Jackman informed me during the hearing of the motion on Saturday, May 4, 2013, that there were duty judges available to hear a motion on this matter at the Federal Court – the court where immigration matters are heard. The Grounds of the Emergency Motion [8] The materials filed on behalf of the applicant asked for a writ of habeas corpus, pursuant to sections 10 and 24(1) of the Charter of Rights and Freedoms to prevent the applicant’s detention for the purposes of removing him from Canada at 6:55 p.m. on May 4, 2013. Ms. Jackman suggested to me that the Federal Court had erred when it refused to stay the applicant’s removal order to Lebanon and that this court should act on a s. 7 Charter application where there was a danger, if Mr. Mohammad were removed, he would be left without any real remedy in an application for judicial review of the removal order. [9] Ms. Jackman also filed an affidavit setting out the fact that Mr. Mohammad had entered Brantford General Hospital at 6:00 p.m. on Friday, May 3, 2013 for various medical ailments and depression. Further Reasons for Dismissing the Motion [10] The Superior Court has concurrent jurisdiction with the Federal Court to deal with proceedings that raise constitutional and Charter issues in the context of immigration matters. The Federal Court, however, is the proper forum for matters that are primarily immigration matters [R. v. Canada, [1994] 2 S.C.R. 394; May v. Ferndale Institution, [2005] 3 S.C.R. 809]. [11] In Francis v. Attorney General [(2003), 171 O.A.C. 198, leave to appeal dismissed [2003] S.C.C.A. No. 185], the Ontario court of Appeal held that an applicant cannot come to the Ontario courts on an immigration matter because there is little hope for success in the Federal Courts.

2013 ONSC 2936 (CanLII)

- Page 3 [12] The applicant presented me with case law, including the decision of Mr. Justice D. Lane of Suresh v. Canada heard January 23, [1998] O.J. No. 296. That case involved this court restraining the Attorney General of Canada from causing the deportation of the applicant pending the outcome of a scheduled judicial review. Justice Lane concluded it was improper for Mr. Suresh to be deported before the resolution of the main application as he might then not benefit from success on that application. [13] Ms. Jackman asks that I come to the same conclusion. I could not.

[14] I fully agree with two decisions of this court in similar applications. In Jothiravi Sittampalam v. Canada 2010 ONSC 3205, heard May 28, 2010 by Mr. Justice D.M. Brown and also in Mohanadasan Anthonipillai v. Canada 2013 ONSC 1231, heard February 12, 2012 by Mr. Justice R. Goldstein, this court declined to exercise its jurisdiction in immigration matters where proceedings had already been initiated in Federal Court. [15] As the Crown has submitted, Parliament has created a comprehensive immigration scheme. The Federal Courts are given exclusive mandate over immigration matters and have the expertise in immigration law. The Federal Courts have geographical jurisdiction throughout Canada. Forum-shopping, inconsistency, and multiplicity of proceedings must be avoided. Therefore, it is in the Federal Court where matters such as this should be litigated. [16] Mr. Justice Brown, in the Sittampalam case [ibid., at para. 32] also noted that to grant the applicant’s requested remedy – the same remedy requested by Mr. Mohammad of me – would open the floodgates to further litigation of this sort. [17] This court is not an appeal court for the review of Madam Justice Mactavish’s dismissal of Mr. Mohammad’s stay application. Every argument made before me was made before Her Honour at the stay of deportation order hearing on May 3. Her Honour’s reasons were thorough and more informative than could generally be expected from this court. [18] Evidence of Mr. Mohammad’s present medical condition is only that of his son’s, provided in a telephone conversation to counsel before this hearing. It is insufficient to change my decision not to interfere in the matter. [19] If there are legitimate medical concerns, the Federal Court should address them and the Canada Border Services Agency can do the same. [20] For those reasons and those delivered orally May 4, 2013, the application is dismissed.

McWatt J.

2013 ONSC 2936 (CanLII)

- Page 4 Date: May 23, 2013

2013 ONSC 2936 (CanLII)

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