Del Milagro v. Canada (Minister of Citizenship and Immigration), 2003 FC 1196

Date: 20031015

Docket: IMM-7907-03

Citation: 2003 FC 1196

BETWEEN:

                                       SECADES ZUNIGA MARIA DEL MILAGRO,

                                           ARTAVIA MENDEZ JORGE ARTURO and

                                             JORGE ESTAVAN ARTAVIA ESPINOZA

Applicants

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                            REASONS FOR ORDER

GIBSON J.

[1]                 By Notice of Motion dated the 8^th of October, 2003, the applicants seek a stay of the implementation of the removal order issued to them on the 25^th of September, 2003 and communicated to them on the 29^th of September, 2003. The applicants are scheduled to be removed to Costa Rica on the 16^th of October, 2003 at 6:30 a.m.

[2]                 The application for judicial review underlying the motion before the Court seeks review of the direction to report for removal issued against the applicants.

[3]                 The applicant Artavia Mendez Jorge Arturo has an outstanding charge in the Criminal Courts of Ontario of assault. The charge was laid on information provided by his common-law spouse and co-applicant on the motion, Secades Zuniga Maria del Milagro. Mr. Artavia Mendez Jorge Arturo is scheduled to appear in court on the assault charge on the 17^th of October, 2003.

[4]                 Paragraph 50(a) of the Immigration and Refugee Protection Act^[1] reads as follows:

50. A removal order is stayed

(a) if a decision that was made in a judicial proceeding - at which the Minister shall be given the opportunity to make submissions - would be directly contravened by the enforcement of the removal order;

...

50. Il y a sursis de la mesure de renvoi dans les cas suivants_:

a) une décision judiciaire a pour effet direct d'en empêcher l'exécution, le ministre ayant toutefois le droit de présenter ses observations à l'instance;

...

[5]                 Paragraph 50(a) is equivalent to, but not identical to, paragraph 50(1)(a) of the Immigration Act^[2], the predecessor to the Immigration and Refugee Protection Act. Paragraph 50(1)(a) of the Immigration Act has been interpreted as precluding execution of a removal order where the subject of the order faces an outstanding criminal charge unless that charge has first been stayed or withdrawn.^[3]

[6]                 Paragraph 234 (a) of the Immigration and Refugee Protection Regulations^[4] reads as follow:

234. For greater certainty and for the purposes of paragraph 50(a) of the Act, a decision made in a judicial proceeding would not be directly contravened by the enforcement of a removal order if

(a) there is an agreement between the Department and the Attorney General of Canada or the attorney general of a province that criminal charges will be withdrawn or stayed on the removal of the person from Canada; or

...

234. Il est entendu que, pour l'application de l'alinéa 50a) de la Loi, une décision judiciaire n'a pas pour effet direct d'empêcher l'exécution de la mesure de renvoi s'il existe un accord entre le procureur général du Canada ou d'une province et le ministère prévoyant :

a) soit le retrait ou la suspension des accusations au pénal contre l'étranger au moment du renvoi;

...

[7]                 Neither the Immigration Act or the Regulations enacted pursuant to that Act contained any provision equivalent to paragraph 234(a).

[8]                 The material before the Court on this motion includes a statutory declaration of an "Expulsion Officer" in the Respondent's Ministry which includes the following two (2) paragraphs:

I contacted James Chaffe, Crown Attorney at Toronto East Court House via email on 03/10/03 to inform them that Mr. Mendez and his family were tentatively booked for removal on 16/10/03 and requesting if charges could be stayed if removal was confirmed.

I received a call from Scott Rogers, Assistant Crown Attorney, Toronto East Court House informing me that if subject departs Canada on 16/10/03 and if his departure is confirmed by Canada Immigration in writing, his charges will be stayed.

It is clear to the Court that the burden of the quoted paragraphs is to establish that an agreement within the contemplation of paragraph 234(a) of the Immigration and Refugee Protection Regulations exists and that therefore the stay of removal of the applicant Artavia Mendez Jorge Arturo provided by paragraph 50(a) of the Immigration and Refugee Protection Act would not be breached by the removal of the Applicants.

[9]                 Removal from Canadaof persons such as the Applicants, against their will, is clearly a matter of great significance to such persons. It potentially affects their safety and well being and will, in most cases, certainly affect their economic and social circumstances, often, unfortunately, in a dramatically negative way.    In the light of this reality, the Court concludes that the evidence now before it of an agreement between the respondent and the Attorney General of a province that criminal charges will be withdrawn or stayed on the removal of the Applicants from Canada is simply insufficient. Such an agreement should be evidenced in writing and such evidence should be properly before the Court where the respondent takes the position that paragraph 50(a) of the Immigration and Refugee Protection Act does not operate to stay removal of a person such as the applicant, Artavia Mendez Jorge Arturo.

[10]            Based upon the foregoing conclusion, following a hearing this day, the Court, for greater certainty, stayed removal of the applicants from Canada until the 31^st of October, 2003. In all other respects, the motion for a stay of removal pending final determination of the application for judicial review on which the stay application was based was adjourned, sine die.

_______________________________

                      Judge

Ottawa, Ontario

October 15, 2003

                                       FEDERAL COURT

                       NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-7907-03

STYLE OF CAUSE: SECADES ZUNIGA MARIA DEL MILAGRO et al v. MCI

PLACE OF HEARING:                                   OTTAWA, ONTARIO AND TORONTO, ONTARIO

VIA TELECONFERENCE CALL

DATE OF HEARING:                                     WEDNESDAY, OCTOBER 15, 2003

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE GIBSON

DATED:                                        WEDNESDAY, OCTOBER 15, 2003

APPEARANCES:

MR. MUNYONZWE HAMALENGWA        FOR APPLICANT

MR. MICHAEL BUTTERFIELD                      FOR RESPONDENT

SOLICITORS OF RECORD:

MR. MUNYONZWE HAMALENGWA        FOR APPLICANT

MISSISSAUGA, ONTARIO

MR. MORRIS ROSENBERG                                        FOR RESPONDENT

DEPUTY ATTORNEY OF CANADA