Konieczny v. Canada (Minister of Citizenship and Immigration), 2005 FC 277

Date: 20050222

Docket: IMM-1037-05

Citation: 2005 FC 277

Toronto, Ontario, February 22^nd, 2005

Present:           The Honourable Mr. Justice Harrington                              

BETWEEN:

RAFAL KONIECZNY

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]                Mr. Konieczny is due to be removed to his native Poland later this week. His refugee claim was dismissed, and he was not successful on his pre-removal risk assessment.

[2]                He seeks a stay of the removal order pending decision on an application for judicial review of the decision of the Expulsion Officer on February 15^th 2005, refusing to defer his removal. Mr. Konieczny has a number of criminal convictions in Canada which gave rise to a probation order which requires him to report to a probation officer, a restitution order, community service work, and a recognizance of bail. In addition when he signed his affidavit in support of his application last week there was a pending criminal charge against him, with trial fixed for later this year, and a recognizance of bail.

[3]                Mr. Konieczny does not contest that he will have to leave Canada. His concern is that he hopes one day to obtain a pardon which would make him eligible to return if his current girlfriend sponsors him. Put another other way, his past criminal activity would not in itself be a bar to his return.

[4]                If he is in Poland and not allowed back in Canada he would be unable to attend his trial, bail would be forfeited, he would not be able to perform community service in Canada, or report to the probation officer. Presumably he could still make restitution.

[5]                Mr. Konieczny was subsequently given some comfort in that the crown attorney in question has stated in writing he will direct a stay of proceedings with respect to the outstanding Criminal Code charges against him, upon confirmation of his removal from Canada, the whole pursuant to section 579 (1) of the Criminal Code. That has the effect of vacating the bail and addresses his concern that he should not be removed until the criminal charges currently pending are decided. The withdrawal is in writing and put before the Court which covers the concern of Gibson J. in DelMilagro v. Canada (Minister of Citizenship and Immigration) 2003 F.C. 1196; [2003] F.C.J. No. 1524 at paragraph 9.   

[6]                Counsel for Mr. Konieczny advises he is endeavouring to get some assurances from the authorities that he would still be able to obtain a pardon because it was operation of law, and not his free act, which removed him from Canada and prevented him from reporting to his probation officer and carrying out community service here. The Expulsion Officer cannot be concerned with his potential return to Canada. His duty is to remove him, if he gets those assurances, fine.    However if he does not, it is far too speculative to hold that he has suffered irreparable harm because he may not be permitted to return to Canada. He would be seeking a stay based on his own criminality. As stated by Létourneau, J.A in Cuskie v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 3 at paragraph 25. "Probation orders were not meant to defer the execution of a valid removal order and interfere with the Minister's duty, pursuant to section 48 of the Act, to act diligently and expeditiously.                   

[7]                The tripartite test for a stay as set out in such cases as Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A) has not been met.

[8]                On consent the Minister of Citizenship and Immigration has been replaced as Respondent by the Solicitor General of Canada.

ORDER

The application for a stay of the removal order is dismissed.

"Sean Harrington"

                                                                                                                                                   J.F.C.                             

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            IMM-1037-05

STYLE OF CAUSE:                             RAFAL KONIECZNY

Applicant

and

THE SOLICITOR GENERAL OF CANADA

Respondent

PLACE OF HEARING:                        TORONTO, ONTARIO

DATE OF HEARING:              FEBRUARY 21 , 2005

REASONS FOR ORDER

AND ORDER BY:                                HARRINGTON, J.

DATED:                                                FEBRUARY 22, 2005

APPEARANCES BY:            

Mario Bellissimo                                    FOR THE APPLICANT

Allison Phillips                           FOR THE RESPONDENT

SOLICITORS OF RECORD:          

Mario Bellissimo

Barrister & Solicitor

Toronto, Ontario                                   FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada      FOR THE RESPONDENT