Bynoe v. Canada (Minister of Citizenship and Immigration), 2001 FCT 246

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2001 FCT 246

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Text of decision

Date: 20010327

Docket: IMM-646-01

Neutral Citation: 2001 FCT 246

Halifax, Nova Scotia, this 27^th day of March, 2001

PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

LANCE RONALD SYLVESTER BYNOE

Applicants

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1] This is a motion by the applicant for an order staying the removal order issued against the applicant on January 15, 2001 whereby the applicant was to be removed from Canada on March 29, 2001.

[2] The applicant is a permanent resident of Canada having been granted landed immigrant status on April 18, 1990. He was convicted of the offence of conspiracy to commit the indictable offence of trafficking in a narcotic on May 4, 1999 and received a sentence of 34 months imprisonment.

[3] His parole reports are excellent in that he obtained a rating of 14 which means that in his classification, 4 out of 5 offenders will not commit an indictable offence after release.

[4] The applicant has a common-law wife of five years and a son three years old. His father lives in Toronto.

[5] On October 15, 1999, he was found to be a danger to the public in Canada pursuant to subsection 70(5) of the Immigration Act (the "Act").

[6] The applicant provides care for his child and for his common-law wife who is sickly.

[7] In order to grant a stay, I must be satisfied that the applicant has met the tri-partite test outlined in Toth v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.). The applicant must meet all three parts of the tri-partite test. Summarized, these tests are:

1. Has the applicant demonstrated that he has a serious issue to be tried?

2. Has he demonstrated that he would suffer irreparable harm if the stay order was not granted?

3. Has he demonstrated that the balance of convenience considering the total situation of both parties favours the order being granted?

Serious Issue

[8] I am satisfied that the applicant has raised a serious issue in that he has stated that the filing of his out of time application for leave and for judicial review brought into play the statutory stay of subparagraph 49(1)(c)(i) of the Act. This Court is divided on that issue. This raises a serious issue to be tried.

Irreparable Harm

[9] The applicant has just been reunited with his common-law wife and son, both of whom he cares for. As well, the applicant is certainly well on the road to rehabilitation. It would result in irreparable harm in this case to the applicant should this situation be changed pending the determinations of his applications.

Balance of Convenience

[10] The balance of convenience favours the applicant so as to allow him to stay in Canada until his applications are decided. If the applicant is unsuccessful, the respondent can then remove him from Canada. There should not be a lengthy delay.

[11] The applicant's motion is allowed.

ORDER

[12] IT IS ORDERED that the removal order issued against the applicant on January 15, 2001 is hereby stayed until the applicant's application for extension of time to file his judicial review, his application for leave to file a judicial review, his application for judicial review (if the extension of time and leave are granted) and his H & C application (if one has been filed) are finally dealt with by the Court.

"John A. O'Keefe"

J.F.C.C.

Halifax, Nova Scotia

March 27, 2001.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-646-01

STYLE OF CAUSE:LANCE RONALD SYLVESTER BYNOE

- and -

THE MINISTER OF CITIZENSHIP & IMMIGRATION

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: MONDAY, MARCH 19, 2001

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: MARCH 27, 2001

APPEARANCES:

Mr. Munyonzwe Hamalengwa

FOR APPLICANT

Mr. Martin Anderson

FOR RESPONDENT

SOLICITORS OF RECORD:

Munyonzwe Hamalengwa

45 Sheppard Avenue East, suite 900

Toronto, Ontario M2N 5W9

FOR APPLICANT

Department of Justice

Ontario Regional Office

130 King Street West

Toronto, ON M5X 1K6