CONSTITUTIONAL LAW
Charter of Rights
Life, Liberty and Security
Motion to set aside order dismissing motion for state‑funded counsel in immigration judicial review proceedings pursuant to Federal Courts Rules, r. 399(1)—Applicant, Somali, obtained permanent resident status in Canada in 1996—Convicted of, imprisoned for kidnapping, raping 17‑year‑old girl—Immigration and Refugee Board issued deportation order on basis applicant inadmissible to Canada because of serious criminality pursuant to Immigration and Refugee Protection Act, s. 36(1)(a) (IRPA)—Applicant applied for pre‑removal risk assessment (PRRA) which had effect of staying deportation order until application refused—PPRA officer determined applicant at risk of death or cruel, unusual treatment or punishment if returned to Somalia—Because inadmissibility related to serious criminality, case sent to Minister’s delegate for final determination of risk of return to Somalia in accordance with IRPA—Meanwhile, applicant held in detention, subject to detention reviews—After fourth detention review hearing, applicant ordered released on terms, conditions—Minister applied for leave, judicial review of detention decision— Obtained stay of release order from Federal Court in interim —Applicant asked motion seeking state‑funded counsel be decided on basis of written representations under Federal Courts Rules, r. 369—However, duty judge requested parties’ appearance—Applicant expected to appear by teleconference but failed to do so because of administrative foul‑up at detention centre where detained—Represented by counsel solely for purposes of present motion to set aside order dismissing applicant’s motion—Applicant relying on Canadian Charter of Rights and Freedoms, s. 7 to claim entitled to have state‑funded counsel—Case law establishing accused may have right to state‑funded counsel in criminal proceedings if (a) indigent; (b) not eligible for legal aid; (c) lacking ability to represent self adequately; and (d) involved in serious, complex legal proceeding affecting liberty— Assuming same principle extended to civil proceedings, applicant not indigent—Friends ready to provide for applicant’s bail—Applicant also represented by competent legal counsel in previous detention reviews, etc.—As to eligibility for legal aid, immigration funding at Legal Services Society of British Columbia limited to cases where applicants facing danger if returned to country of origin—Funding cannot be used for judicial review of bail decisions—No evidence applicant unable to represent self adequately— Proceeding not complex—Court not having jurisdiction to instruct legal aid services how to allocate cash‑strapped resources but having jurisdiction to state Charter, s. 7 right not requiring federal minister to provide public funds for applicant to pay counsel—Right to counsel not absolute—State need not fund applicant within context of present application before Federal Court—Motion dismissed—Federal Courts Rules, SOR/98‑106, ss. 1 (as am. by SOR/2004‑283, s. 2), 369, 399—Immigration and Refugee Protection Act, S.C. 2001, c. 21, s. 36(1)(a)—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. 7.
Canada (Minister for Public Safety and Emergency Preparedness) v. Muse (IMM‑4468‑05, 2005 FC 1380, Harrington J., order dated 11/10/05, 8 pp.)