[1] The applicant seeks an order to stay her removal from Canada. Ms. Jones, as she prefers to be called now, is a fifty two year old citizen of Jamaica who became a permanent resident of Canada in November, 1981. Between 1986 and 2001, she acquired a criminal record for theft, fraud and failing to appear offences. In September 2002, she was convicted of attempted abduction, fraud, failure to comply with a probation order and failure to appear. The attempted abduction charge arose out of an attempt to steal a baby from a hospital Neonatal Intensive Care Unit. She was held in custody for 14 months pending disposition of those charges. On December 12, 2002, she was sentenced to a further term of imprisonment of 9 months and three years probation on the attempted abduction count together with three months consecutive for the other offences.
[2] The applicant was ordered deported on March 23, 2003. That decision was appealed to the Immigration Appeal Division ("IAD") of the Immigration and Refugee Board. The Minister sought to have the IAD decline jurisdiction by reason of section 64 of the Immigration and Refugee Protection Act ("IRPA") which precludes appeals to the IAD by persons found to be inadmissible by reason of, among other grounds, "serious criminality". The Minister's motion, following written submissions, was dismissed on October 24, 2003. Leave for judicial review of that decision was denied, without reasons, in June 2004.
[3] A date was then set of January 11, 2005 for the hearing of the appeal before the IAD. Prior to the hearing, the Minister renewed the jurisdictional motion. On February 28, 2005, the IAD accepted the Minister's argument that section 64 applied and dismissed the applicant's appeal. The applicant filed on April 21, 2005, more than a month out of time, an application for leave and for judicial review of that decision and is also seeking an extension of time from the Court for that application.
[4] The applicant asks that I grant a stay of removal - in accordance with the tripartite conjunctive test set out in Manitoba (Attorney General) v. Metropolitan Stores Ltd.,[1987] 1 S.C.R. 110 and R.J.R. MacDonald Limited v. Canada (A.G.) [1994] 1. S.C.R. 311 and applied by the Federal Court of Appeal to stays of deportation in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.) - on the basis that there is a serious issue to be tried, that the applicant would suffer irreparable harm if deported and that the balance of convenience lies in the applicant's favour.
[5] As an extension of time is a condition precedent to the consideration of the underlying leave application, the applicant must establish that the application for an extension itself raises a serious issue. To do so, the applicant must demonstrate that there are special reasons, as required by IRPA paragraph 72(2)(c), for extending the time for filing and serving the leave application: Semenduev v.Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No.70 (T.D.); Akpataku v. The Minister of Citizenship and Immigration, [2004] FC 698.
[6] The principles governing the grant of an extension of time for serving and filing a leave application are those set out by the Federal Court of Appeal in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399, [1999] F.C.J. No. 846. The applicant must show a continuing intention to pursue the application, that it has "some merit", that no prejudice to the respondent arises from the delay and that a reasonable explanation for the delay exists.
[7] I am prepared to accept that the applicant had a continuing intention to pursue her leave application and that her explanation for the late filing - supported as it is by an affidavit from one of her former counsel - is reasonable, although neither question is entirely free from doubt. She had access to another lawyer who served as her counsel in the Immigration and Refugee Board proceedings, including the Appeal Division hearings. It is not clear why she was unable to instruct that lawyer to serve and file her leave application within the allotted time when she could not reach her preferred counsel. However, I accept that she made an effort to reach that lawyer and some confusion resulted from her change of name. Of the fourth criterion in Hennelly, there is nothing before me to suggest that the respondent would suffer any prejudice from the delayed filing.
[8] Nonetheless, I am not satisfied that the underlying application has "some merit" or raises a serious issue. In the decisions of this Court concerning the application of IRPA ss.64(2) thus far, there is general agreement that time served in pre-sentencing custody does form part of the term of imprisonment to be considered in an immigration context: Allen v. Minister of Citizenship and Immigration (May 5, 2003), IMM-2439-02; Atwal v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 170 (F.C.); Canada (Minister of Citizenship and Immigration) v. Smith [2004] F.C.J. No. 2159, 2004 FC 63; Canada (Minister of Citizenship and Immigration) v. Gomes [2005] F.C.J. No. 369, 2005 FC 299.
[9] The applicant contends that these cases are distinguishable because the actual period of pre-sentence custody served together with the additional term of imprisonment imposed exceeds, in each case, the 24 month threshold for "serious criminality" established by subsection 64(2). In the applicant's case, the pre-sentence custodial period and additional term imposed add up to just 23 months, one short of the threshold. Accordingly, the applicant argues, the principles developed in Allen and Atwal and cited and followed in Smith and Gomes, should not apply to her situation. I do not agree.
[10] In Atwal, Justice Pinard notes at paragraph 12 of his reasons, that the warrant of committal in that case indicated "...a final custodial sentence of 6 months in addition to the 20 months of pre-sentence custody (credited at 3 and ½ years) for a total of four years of punishment" [emphasis added].
[11] It is clear from the transcript of the sentencing hearing in this case, that the trial Judge believed that the gravity of the major crime for which sentence was being imposed required a term of imprisonment of two and a half years. The attempted abduction was a serious crime that the applicant pursued to the door of the neo-natal unit until suspicions were aroused and security was summoned. A child's life and health could have been placed in jeopardy had she managed to succeed in her plan.
[12] Applying Justice Pinard's reasoning from Atwal, the total punishment in this case was 30 months consisting of the 14 months credited as 21 plus the 9 months additional imposed. Thus interpreted, it exceeds the 24 month limit and meets the standard of "serious criminality" established by ss.64(2).
[13] The Supreme Court of Canada has held, in the context of determining whether mandatory minimum penalties under the Criminal Code can withstand Charter scrutiny, "...while pre-trial detention is not intended as punishment when it is imposed, it is in effect, deemed part of the punishment following the offender's conviction ..." per Arbour J.for an unanimous Court in R.v. Wust, [2000] 1 S.C.R. 455 at pp.477 to 478 [emphasis added].
[14] One effect of Wust is that it is now clear that a calculation of the term of imprisonment imposed upon an offender is not limited to the post-conviction sentence together with the actual time served in pre-sentence detention. The Supreme Court accepted that credits for time served count towards determining the extent of the punishment imposed. It would be inconsistent with Wust and contrary to the Parliamentary intent in enacting IRPA section 64, in my view, for this Court to conclude that such credits are not to be taken into account in determining whether the punishment imposed by the criminal courts meets the test of "serious criminality".
[15] Even if I were to accept that there is "some merit" to the applicant's leave application, I am not satisfied that she has established that she would suffer irreparable harm if she were to return to Jamaica. Irreparable harm cannot be speculative or based on a series of possibilities: Akyol v. Canada (Minister of Citizenship and Immigration) 2003 FC 931, [2003] F.C.J. No.1182 (T.D.). The Court must be satisfied that irreparable harm will occur: Atakora v. Canada (Minister of Employment and Immigration) (1993) 68 F.T.R. 122 (T.D.).
[16] The principal ground advanced on the applicant's behalf is that her litigation position would be seriously undermined if she was no longer in the country to pursue her avenues of redress. As noted by Rothstein J.A. in El Ouardi v. Canada (Solicitor General) 2005 FCA 42, [2005] F.C.J. No. 189, if that argument were to be adopted as a general principle it would apply to virtually every stay motion and would deprive the Court of the discretion to decide questions of irreparable harm on the facts of each case. Nothing in Evans J.A.'s extensive review of irreparable harm issues in Tesoro v. Canada (Minister of Citizenship and Immigration) 2005 FCA 148, [2005] F.C.J. No.698, relied upon by the applicant, is to the contrary.
[17] It is also submitted that the loss of the statutory stay that accompanies an appeal to the IAD cannot be compensated for by way of damages and therefore falls within the scope of irreparable harm. In other words, the Court should grant the stay that the applicant was denied by reason of the IAD's refusal to hear her appeal, for if she were successful in her leave application, she could never regain that advantage. I am not persuaded that this constitutes irreparable harm or is, otherwise, an appropriate basis upon which the Court should exercise its equitable discretion.
[18] Risks to the applicant's physical and mental health were also raised and were more troubling at first impression. It appears that the applicant takes medication for diabetes, to control her blood pressure and a drug prescribed for serious mental health conditions. She expresses concern in her affidavit that she would be unable to afford the medications if required to return to Jamaica as she would be unemployed there and would lack support there from anyone other than her aged mother. Here, her prescription costs are covered by social assistance.
[19] No evidence was provided from a physician, psychiatrist, or psychologist to describe the applicant's medical condition or to establish the nature of her mental health problems . There is no evidence before me that she is currently under medical treatment. At best, the evidence with respect to her mental health suggests that she has a history of unstable and dysfunctional relationships and that any question of mental illness is "somewhat nebulous," to use the phrase employed by the sentencing judge in 2002. None of this is sufficient to establish that irreparable harm would be caused the applicant if she returns to Jamaica.
[20] On the question of the balance of convenience between the parties, I agree with the respondent that the applicant has not satisfied the third aspect of the tripartite test. The applicant has a significant criminal record that escalated to the commission of a serious crime. I see no public interest ground that would favour not removing the applicant as scheduled. The Minister has a duty to administer the statute and that concern outweighs any inconvenience that removal may occasion this applicant.
ORDER
THIS COURT ORDERS that the motion for a stay of removal is dismissed.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2453-05
STYLE OF CAUSE: NADINE KAREN CHEDDESINGH
(JONES)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 9, 2005
REASONS FOR ORDER
AND ORDER BY : MOSLEY J.
DATED: MAY 11, 2005
APPEARANCES:
JACK MARTIN FOR THE APPLICANT
NEETA LOGSETTY FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACK MARTIN
TORONTO, ONTARIO FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
In Atwal and Smith, questions were certified under IRPA s.74 for the Court of Appeal to consider whether pre-sentence custody, expressly credited towards a person's criminal sentence, forms part of the "term of imprisonment". The appeals in both cases have been discontinued.
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