Jiminez-Beza v. Canada, docket IMM-2788-96

     Court No. IMM-2788-96

B E T W E E N:

     DANIEL JIMENEZ-BEZA

     Applicant

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN, J.:

     This is the applicant's motion pursuant to Rule 324 of the Federal Court Rules (hereinafter, the "Rules") for an Order staying the within proceedings, the applicant's application for leave and the judicial review, and the applicant's deportation Order until provided with state-funded counsel.

THE FACTS

     The applicant came to Canada from Guatemala in 1983, and applied for Convention refugee status. The basis of his claim was that he had deserted the Guatemalan army and faced a risk of persecution or death should he be returned to Guatemala. Due to the backlog in the refugee determination system, the applicant's refugee status was never determined. Instead, the applicant was given landed immigrant status.

     The applicant was incarcerated at Millbrook Correctional Centre when the current immigration proceedings were commenced against him. The incarceration was the result of convictions for aggravated assault and assault with a weapon, contrary to the Criminal Code of Canada. He had been sentenced, in late 1995, to eight months and five months, to be served consecutively. Prior to being convicted for those offences, the applicant was convicted for a number of other offences, including trafficking in narcotics.

     During his incarceration at Millbrook, the applicant has not been the subject of any disciplinary action. The applicant submits that he was a productive member of Canadian society for seven years prior to his involvement with drugs.

     In late 1995 and early 1996, the respondent informed the applicant that it intended to request a Minister's opinion as to whether the applicant was a danger to the public pursuant to subparagraph 46.01(1)(e)(iv) and subsection 70(5) of the Immigration Act (hereinafter, the "Act"). Due to the applicant's incarceration, limited education, and limited capacity in the English language, he had difficulty in obtaining legal advice and responding within the time prescribed. The Minister decided against the applicant, and on May 30, 1996, the applicant was ordered deported back to Guatemala, pursuant to subsection 32(2) of the Act.

     On June 17, 1996, the applicant applied for legal aid for an opinion as to the merits of seeking leave and filing a Notice of Application for Leave and Judicial Review of the deportation order and decisions of the Minister's delegate. This application was refused by the Ontario Legal Aid Plan (hereinafter, "OLAP") on July 10, 1996. The reason for refusal was that the type of assistance sought was not covered by the OLAP.

     The applicant believes that, because of his desertion from the Guatemalan army, he would be in imminent danger of death if he were to be deported to Guatemala.

THE ISSUES

     1. Does the applicant meet the tripartite test for the granting of a stay?

     2. Is the applicant's application premature?

     3. If the applicant meets the tripartite test for the granting of a stay, and if the application is not premature, for what length of time should be the stay?

DISCUSSION

1. The tripartite Toth test

     Is there a serious issue to be tried? The applicant's submissions, which he made without the assistance of legal counsel, indicate to me that his case is a complex one. The applicant can hardly be faulted for not having adhered to the requisite technicalities in the filing of a motion, given the fact of his self-representation in this matter, and his personal circumstances. To my mind, the applicant has substantively made the case that there are several issues worthy of a hearing. Just as was held by McKeown J. in Naredo v. Canada (Minister of Citizenship and Immigration), 33 Imm. L.R. (2d) 312 (hereinafter, Naredo), in this case, I, too, find that the execution of a deportation order in the individual circumstances of the person to be deported may result in cruel and unusual treatment. In my view, the applicant has demonstrated that he has a serious issue to be tried.

     The applicant has also provided such evidence as is necessary to establish irreparable harm. Because of his desertion from the Guatemalan army, he believes that he would be in imminent danger of death if he were to be deported to Guatemala. There is no rebuttal evidence from the respondent. Again, as in Naredo, the applicant at bar could suffer irreparable harm if deported to a country from which he sought refuge, if he were not afforded the necessary state protection.

     Calling the applicant's affidavit an "unsworn declaration" is hardly fair to someone whose language is not English and who has not had access to a lawyer. Mr. John Edwin Carter, the Commissioner, was satisfied that the affidavit had been done correctly, although, to be fair, the words "Sworn before me" are missing on the document. In addition, the respondent, in its submissions, treats the document as an affidavit, and this shows to me that the respondent accepts it as such. I weigh this fact against the circumstances in which the applicant finds himself. I am satisfied that, by the applicant's document marked as an affidavit, the applicant was swearing to the truth under oath.

     The balance of convenience issue weighs heavily in favour of the applicant in that deportation may be a death warrant or may result in persecution, and in all likelihood the applicant would not be able to make his case if he were deported. The respondent would be far less inconvenienced or damaged if the two temporary Orders sought were given, staying the deportation until a final disposition of the applications for leave and for judicial review. Although I am very concerned about the public interest in executing deportation orders, in my view, the balance of convenience lies in favour of granting the stay.

2. Premature application

     The respondent is quite correct in making the point that waiting for approval of legal aid is not, in itself, sufficient reason to grant an extension of time. The same principle would apply to granting a stay of proceedings. Here, however, there are other circumstances faced by the applicant that warrant a stay and an extension of time. Clearly, the reason for the time extension sought is not just that the applicant was seeking help from legal aid.

CONCLUSION

     Is the applicant entitled to a stay and an extension of time to file his application for leave and judicial review? In my view, yes. He easily meets the tripartite test of serious issue, irreparable harm and balance of convenience. Any objective reading of the documentation filed by the applicant can leave no room for doubt.

     Concerning the timing of the application, a deportation order is understandably a catalyst to action, so the applicant can be excused for moving "prematurely" to get a stay.

     Having determined that the applicant has met the tests necessary to warrant a stay of the deportation Order, I will incorporate the details of this stay in the Order to be signed. The stay is granted until such time as the applicant's application for leave is heard, and, if granted, until such time as the judicial review is heard and finally determined by the Court.

     This Court has no jurisdiction to appoint state-funded legal counsel to the applicant, as requested. The applicant's case is clearly distinguishable from R. v. Zylstra, 30 W.C.B. (2d) 354 (Ont. Crt. Gen. Div.) (hereinafter, Zylstra), in which case the court granted a stay until funding at Legal Aid rates was assured, subject to such repayment requirements as the province might impose. The Zylstra case was in the context of criminal law and evidence, where rights and freedoms at issue were different from those in the present case. In addition, the applicant in Zylstra had been refused legal aid on the basis of financial grounds, whereas, in the present case, the applicant was refused on the basis that the type of service requested was not covered under the OLAP. However, the applicant's case is both serious and complex, and would benefit from legal assistance. I therefore grant an extension of time to permit the applicant to file an application for leave and for judicial review, said extension to be not later than January 15, 1997. If in this time frame the applicant is unwilling or unable to complete an application for leave and for judicial review, it will be open to the respondent to move for removal of the stay.

OTTAWA

     B. Cullen

septembre 17, 1999

     J.F.C.C.