Date: 20020207
Docket: IMM-408-02
Neutral Citation: 2002 FCT 141
BETWEEN:
O'NEIL GRANT
Applicant,
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.
[1] The applicant O'Neil Grant has applied for an Order staying his removal from Canada to Jamaica. I have read and carefully considered all of the evidence tendered by the parties. I have heard from counsel for both parties.
[2] It is not necessary in the present matter to review the applicant's long history with respect to his immigration status and criminal convictions affecting said status. The 30-page Decision of the Immigration Appeal Division dated June 21, 2001 carefully details the underlying facts.
TEST FOR STAY
[3] In order to succeed on his motion to stay the execution of the removal order, the applicant must meet the requirements of a tri-partita test as set out by the Federal Court of Appeal in Toth v. Canada (Minister of Citizenship and Immigration) (1988), 6 Imm. L.R. (2d) 123 (F.C.A.) and by the Supreme Court of Canada in RJR-MacDonald Inc. v. The Attorney General of Canada et. al., [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17 (S.C.C.).: that there is a serious issue to be tried, that he would suffer irreparable harm by reason of his deportation and that the balance of convenience lies in his favour.
SERIOUS ISSUE: SECTION 7 OF THE CHARTER
[4] In this case, the applicant submits that the serious issue is whether the deportation of the applicant will abrogate the applicant's rights under section 7 of the Canadian Charter of Rights and Freedoms, which reads:
Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Vie, liberté et sécurité
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
It is well settled in the jurisprudence that section 7 of the Charter is not violated by the requirements of the Immigration Act. Sopinka, J. in Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711, at paragraphs 24 and 25, wrote:
The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has no right to enter or remain in the country: R. v. Governor of Pentonville Prison, [1973] 2 All E.R. 741; [1976] 1 S.C.R. 376">Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376.
La Forest J. recently reiterated this principle in Kindler v. Canada (Minister of Justice), supra, at p. 834:
The Government has the right and duty to keep out and to expel aliens from this country if it considers it advisable to do so. This right, of course, exists independently of extradition. If an alien known to have a serious criminal record attempted to enter into Canada, he could be refused admission. And by the same token, he could be deported once he entered Canada.
If it were otherwise, Canada could become a haven for criminals and others whom we legitimately do not wish to have among us.
[5] Further, the Charter does not grant the applicant an absolute right to remain in Canada because he suffers from a medical condition that allegedly may receive better treatment in Canada than in his country of birth. Décary J.A., delivering the decision for the Federal Court of Appeal in Steven Romans v. M.C.I., [2001] F.C.J. No. 1416, 2001 FCA 272 (F.C.A.), stated at paragraph 2:
The fact that the appellant has resided in Canada since early childhood, has no establishment outside of Canada and suffers from chronic paranoid schizophrenia does not give him an absolute right to remain in Canada, that right being recognized by section 6(1) of the Charter to Canadian citizens only.
[6] I am satisfied that the applicant has exercised his legal rights in Canada, has been treated fairly, and has been given every valid consideration by the IAD and the Immigration Department. Accordingly, the applicant's right to life, liberty and security of person, and the right not to be deprived thereof except in accordance with principles of fundamental justice, has been respected. Fundamental fairness has been afforded the applicant.
[7] The applicant had previously requested that the IAD reconsider its decision. The IAD released its decision prior to the hearing of this application for a stay. The decision of the IAD was that it will not reconsider. All subsequent legal remedies will not be prejudiced by the execution of the removal order in this case. The applicant may pursue any such remedies from Jamaica, through counsel in Canada. Therefore, there is no absence of procedural fairness that would result in a serious issue to meet the first branch of the Toth tests. Accordingly, there is no serious issue to be considered in the present matter.
IRREPARABLE HARM
[8] A fundamental principle of immigration law is that non-citizens do not have a right to remain in Canada. Canada is not and will not become a haven for criminals. If a non-citizen commits a crime they are subject to the loss of their right to remain in Canada. The jurisprudence has established that a mental or other illness does not give a non-Canadian the right to remain in Canada. The cases have also established that criminal activities, drug addition, and illnesses cannot be the foundation for a claim of irreparable harm. Evidence proferred by the applicant regarding irreparable harm that will result from his separation from his children, separation from his treatment for PTSD, and lack of establishment in Jamaica is speculative at best, and has been addressed at length by the IAD in its original decision.
[9] In this case, I am satisfied that the applicant would not suffer any irreparable harm by reason of his deportation. Evidence of irreparable harm must be clear, and not speculative.
BALANCE OF CONVENIENCE
[10] Finally, with regards to the third branch of the Toth test The balance of convenience favours the respondent Minister, in view of the government of Canada protecting the public from criminals. The IAD clearly and emphatically stated its opinion that the applicant represents a danger to the Canadian public, and this conclusion was within the IAD's discretion and authority to make.
CONCLUSION
[11] I am not satisfied that the applicant has raised either a serious issue, irreparable harm based on the jurisprudence, or that the balance of convenience favours the applicant. Accordingly, this application for a stay of the removal order is dismissed.
"Michael A. Kelen" ___________________________
Judge
OTTAWA, ONTARIO
February 7, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-408-02
STYLE OF CAUSE: O'NEIL GRANT v. MCI
MOTION HEARD BY TELECONFERENCE BETWEEN OTTAWA AND TORONTO DATE OF HEARING: Wednesday. February 6. 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE KELEN DATED: February 7. 2002
APPEARANCES:
Mr. Osborne G. Barnwell FOR THE APPLICANT
Mr. Stephen Gold FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
FERGUSOhi. BARNWELL FOR THE APPLICANT Toronto. Ontario
Mr. Morris Rosenben., FOR i HE RESPONDENT Deputy Attorney General of Canada.
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