Ewen: The judge-represented litigant

The Federal Court of Appeal (the “FCA”) resolved an “unusual question” about the Federal Court’s jurisdiction to raise a substantive question not raised by the parties in the context of an urgent motion for judicial review. In Canada (Public Safety and Emergency Preparedness) v Ewen, 2023 FCA 225 [Ewen], the FCA considered the unprompted decision of a Motion Judge to raise a new issue under the Canadian Charter of Rights and Freedoms [Charter]. 

The Motion Judge raised the issue in response to potential misgendering in the written submissions the court had received from the Government of Canada (“Canada”) about the order to deport Mr. Colin James Ewen (“Ewen”). The Motion Judge adjourned the hearing, resulting in Ewen missing his removal date, and ordered the parties to prepare additional submissions to resolve the Charter issue. 

The FCA granted the appeal and quashed the interlocutory order for new submissions because the Motion Judge had no jurisdiction to make the order. 

Facts and procedural history 

In October 2019, the Immigration and Refugee Board of Canada issued a deportation order against Ewen, a United Kingdom (“UK”) citizen living in Canada (Ewen, para 3). Ewen was convicted of several serious crimes in the UK between 1997 to 2005 and was therefore inadmissible under paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) (Ewen, para 3). Ewen was denied a deferral request and filed an application with the Federal Court for judicial review of the refused deferral and a motion to stay his removal, which was urgently heard on June 6, 2023—the day before he was scheduled to be deported (Ewen, para 7). 

When the hearing began, the parties denied having any preliminary matters to raise. Without prompting, the Motion Judge then proceeded to take issue with the inconsistent use of pronouns in the appellant’s written submissions (Ewen, paras 8–9). Canada referred to Ewen using “he/him” and “they/them” pronouns, and the Motion Judge believed that this may have violated Ewen’s right to gender identity under s 15 of the Charter. The Motion Judge proceeded to ask Ewen how he identified, how he felt about being identified “as a they or a their or a them,” and if his dignity was affected (Ewen, para 9). Ewen responded that he identified “as a he,” felt the references were “not very direct” and “pretty confusing,” and that his dignity was “[k]ind of” affected (Ewen, para 9). 

The Motion Judge then adjourned the hearing, granted an interim stay for time to receive written submissions on whether Ewen’s s 15 rights had been violated and potential remedies, and did not resolve the stay motion (Ewen, paras 10–11). There is no right to an appeal under para 72(2)(e) of the IRPA, but the appellant was granted its request for an expedited appeal regardless (Ewen, para 13). 

The FCA decision 

The substance of the FCA decision focused on two questions (Ewen, para 18): 

1. Does the FCA have jurisdiction to hear this appeal despite the statute barring appeals?  
2. Did the Motion Judge err by 
3. Failing to exercise its jurisdiction to determine the stay motion; and/or 
4. Exceed its jurisdiction by raising a new Charter issue that was not raised by the parties? 

The FCA can hear the appeal, because the matter appealed revolves around judicial action outside of the IRPA. 

The FCA determined it had jurisdiction to hear the appeal based on paragraph 27(1)(c) of the Federal Courts Act, RSC 1985, c F-7 [FCA] which authorizes an appeal from an interlocutory judgment of the Federal Court (Ewen, para 16). They noted that the case law  permits empowering the court to hear an appeal when barred under the IRPA in two exceptional cases : 

1. Where a case raises central or exceptional matters that “strike right at the rule of law;” and  
2. When the Federal Court errs through a “separate, divisible judicial act” that does not arise from the powers set out in the IRPA (Ewen, para 17). 

The FCA applied the second exception, since finding that Canada’s potential misgendering infringed Ewen’s Charter rights is not authorized by the IRPA (Ewen, para 18). 

The Motion Judge exceeded the Federal Court’s jurisdiction 

The FCA found that the Motion Judge exceeded the Federal Court’s jurisdiction because the issue raised was unilaterally put forward; not arising from the parties’ issues; and was irrelevant to the underlying deportation motion (Ewen, paras 19–20). 

The Federal Court was acting as an appellate court in exercising judicial review and can raise new issues in rare circumstances. However, those circumstances must suggest that failing to raise the issue would “risk an injustice” and raising the issue would not result in procedural prejudice. Both elements are required, and the FCA found neither present. Any potential injustice was cured when confusion stemming from the pronoun misuse was clarified and failing to conclude the motion before the Motion Judge resulted in deferring the deportation and therefore sufficient procedural prejudice to Canada (Ewen, paras 22–23). 

The FCA also found that several elements required to raise a new Charter issue were absent since the factual record was insufficient, and several procedural steps would be skipped given the context (Ewen, paras 24–28). Moreover, subsection 18.2 of the FCA does not authorize granting interim declarations in the context of interim stays for relief since those declarations are final (Ewen, para 28). 

Analysis 

The FCA decision upholds the rule of law. No one acting with binding state-backed authority is permitted to act without the constitution or a statute empowering them to act, even judges. The FCA empowers judges with broad authority and with wide discretionary power; however, judges still must act only within the boundaries of what the law empowers them to do. 

The question of whether Ewen’s Charter rights were infringed was not the focus of the FCA decision. The takeaway of the decision on this point is that if Ewen believed his rights were infringed, (1) he could raise the issue himself, and (2) the context of the motion was not the appropriate channel to receive a remedy.

Ewen’s rights could be prejudiced by proceeding on a slim factual foundation as easily as Canada’s were. By raising a new issue, the Motion Judge engaged one of the disadvantages that inquisitorial judicial systems have in comparison with the adversarial system Canadians enjoy. Specifically, each party to a dispute is best positioned to argue on their own behalf. The Motion Judge led Ewen into the response that would engage the Charter issue. If Ewen, a self-represented litigant, had counsel, they could have assessed if challenging the misgendering issue was in Ewen’s best interest and informed him of the potential pros and cons of a challenge. The Motion Judge assumed he knew what was best for Ewen and led him down the path towards holding that position. There were better avenues for Ewen to pursue a remedy for the potential misgendering.

The FCA decision does not preclude Ewen from pursuing the other avenues of legal recourse, such as a human rights complaint, or a Charter challenge if there was any injustice that could be remedied that the FCA failed to recognize. In the aftermath, if Ewen’s dignity was genuinely affected, he will have a proper chance to find justice with all the procedural safeguards that accompany any other litigant on such matters. 

Conclusion 

Although preserving a fidelity to the rule of law was the core of the decision, the FCA struck a balance between protecting Ewen’s Charter rights and preserving the integrity and efficiency of Canada’s immigration system.